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Recent Legal Hot Topics: Applicability of the Illinois Consumer Fraud and Deceptive Business Practices Act
Illinois REALTORS® has recently fielded several questions concerning the applicability of the Illinois Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) to advertisements or solicitations that are mailed by real estate licensees and brokerages.
Section 2PP of the Consumer Fraud Act requires a disclosure or disclaimer to be conspicuously located at the top of the postcard or letter, easily readable, printed in bold-face 14-point font or larger and in a black outlined box if certain conditions are met.
Question: Would this disclaimer be required on all real estate advertising?
Answer: We believe the answer is a qualified no, and that the intent of this section was to put requirements in place on the type of mailings that would induce a consumer to think they had an existing obligation to contact the sender or the sender of the mailings is not obvious. For example, mailings that use terms like “Invoice”, “Bill”, “Statement”, and “Renewal”. To place language confirming that this is not a bill and that it is a solicitation on mailings with those ‘buzz words’ or similar phrases is fair so that the consumer isn’t led to believe that they have an outstanding obligation to that sender and they must be told clearly who is the sender. However, it doesn’t make sense to place such language (‘this is not a bill but a solicitation’) on a mailing that is clearly a more general advertisement or a marketing of real estate services and lacks such terms as noted above.
The Real Estate License Act already prohibits fraudulent, deceptive or misleading advertising. This section of the Consumer Fraud Act could be applicable to real estate licensees if they styled their advertisements as creating an existing obligation on the consumer. On the other hand, if they are using some of the ‘buzz words’ noted above or similar language, we would recommend including that the disclaimer/disclosure as required by the Consumer Fraud Act. The Consumer Fraud Act will always overlay the advertising in any regulated industry, but our strict license law provisions already guard against mailers that do not display an affiliation (all licensees must make their brokerage company obvious in their ads) and the content must not be false, deceptive or misleading in any way.
About the writer: Prior to joining Illinois REALTORS® in 2022, Victoria (Vicki) Munson was an attorney in private practice focusing on real estate and estate planning matters. She enjoyed assisting buyers and sellers in bringing their transactions to the closing table. Victoria earned her bachelor’s degree from Western Illinois University and her Juris Doctor from The John Marshall Law School.
