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CHAPTER 33
NEW MEXICO
A. Scope of the Statute and Elements of a Cause of Action
New Mexico’s Unfair Practices Act (UPA),1 declares unlawful
“[u]nfair or deceptive trade practices and unconscionable trade practices
in the conduct of any trade or commerce.”
2 The legislature specifically
intended the statute to be construed according to the interpretations of the
FTC and federal courts.3
The UPA defines an “unfair or deceptive trade practice” as “a false or
misleading oral or written statement, visual description or other
representation of any kind knowingly made in connection with the sale,
lease, rental or loan of goods or services . . . which may, tends to or does
deceive or mislead any person.”4 Nineteen types of practices expressly fall
within the scope of this definition, including representing goods or
services as those of another when they are not,5 representing that goods
are original or new if they are not,6 failure to deliver the quality or quantity
of goods or services contracted for,7 and offering or providing differential
pricing or service based on the buyer’s gender or perceived gender
identify.8 The UPA also makes it an unfair or deceptive practice to violate
the Tobacco Escrow Act.9 The New Mexico Supreme Court has also held
1. N.M. STAT. §§ 57-12-1 through 57-12-26.
2. Id. § 57-12-3.
3. Id. § 57-12-4.
1314, 1318-19 (D.N.M. 2003) (holding that failure to disclose that car had
been previously owned by a rental company was a material
misrepresentation and fell within the UPA). The UPA also extends to “the
extension of credit or in the collection of debts by a person in the regular
course of his trade or commerce.” N.M. STAT. § 57-12-2(D).
5. N.M. STAT. § 57-12-2(D)(l).
6. Id. § 57-12-2(D)(6).
7. Id. § 57-12-2(D)(17).
8. Id. § 57-12-2(D)(19).
9. Id. § 57-12-2(D)(18). The Tobacco Escrow Act imposes a number of
deposit, certification, disclosure, and other requirements on tobacco
product manufacturers selling their products in New Mexico. Id. §§ 6-4-14
through 6-4-24.
