Nothing in the Unfair Practices Act shall apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico or the United States, but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the Unfair Practices Act.

History: 1953 Comp., § 49-15-6, enacted by Laws 1967, ch. 268, § 6; 1999, ch. 171, § 2.

The 1999 amendment, effective June 18, 1999, added the language beginning "but all" to the end.

Actions of a regulatory agency. — The plain language of the statute indicates that the phrase "actions or transactions expressly permitted under laws administered by a regulatory body" is not limited to formal regulations promulgated by an agency. Based on the language of 57-12-7 NMSA 1978 and the New Mexico cases interpreting the statutory exemption, an agency can administer laws expressly permitting an action or transaction through ways other than formal regulation. Plaintiffs' UPA claim asserting that defendant used the term "lights" or "lowered tar and nicotine" on Marlboro Lights or Cambridge Lights cigarette packages without disclosing the tar and nicotine content of the cigarettes according to FTC testing method on the cigarette packages violates the UPA is not barred by implied conflict preemption principles because the evidence before the court was that it would not be "impossible for a private party to comply with both state and federal requirements" and a finding that the use of descriptors on the cigarette packages without supporting numerical tar and nicotine disclosures on the packages is deceptive would not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Mulford v. Altria Group, Inc., 506 F. Supp. 2d 733 (D.N.M. 2007).

Regulatory defense. — Although it is true that the insurance division does administer the regulatory laws governing the issuance of insurance policies in New Mexico, the insurance division has never specifically addressed the subject of modal premiums, and both the Insurance Code and the regulations are silent on the subject. Thus, an insurance company's non-disclosure of certain information regarding its modal premium practices is not "expressly permitted" by the insurance division. Accordingly, the regulatory defense set forth in 57-12-7 NMSA 1978 that would exclude transactions expressly permitted under New Mexico regulatory law does not apply. Azar v. Prudential Ins.Co. of Am., 2003-NMCA-062, 133 N.M. 669, 68 P.3d 909.

Express permission is required to create an exemption. — To exempt an activity or a transaction from the coverage of the Unfair Practices Act, an agency must expressly, and not implicitly, permit the specific activity or transaction, including the manner in which the activity or transaction is done. Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73, rev'g 2008-NMCA-051, 143 N.M. 831, 182 P.3d 814.

Notice of exemption. — For an action or a transaction to be deemed expressly permitted and thereby exempted from the coverage of the Unfair Practices Act, the permission must be within the authority of the regulatory body to grant and must be specifically articulated in a public document. Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73, rev'g 2008-NMCA-051, 143 N.M. 831, 182 P.3d 814.

An express exemption of certain actions or transactions from the coverage of the Unfair Practices Act does not apply retroactively. Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73, rev'g 2008-NMCA-051, 143 N.M. 831, 182 P.3d 814.

Question of law. — Whether a regulatory body has or has not exempted certain actions or transactions from the coverage of the Unfair Practices Act is a question of law, not a question of fact. Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73, rev'g 2008-NMCA-051, 143 N.M. 831, 182 P.3d 814.

Use of a computer program to evaluate insurance claims was not expressly permitted. — Where plaintiffs alleged that the insurer violated the Unfair Practices Act by using claims processing computer programs that were programmed to underestimate and underpay plaintiffs' insurance claims below their true value; the superintendent of insurance adopted an independent market conduct examination that randomly sampled and noted no objections to the insurer's general claims handling practices within the historical period in which plaintiffs' claims had arisen; the market conduct examination did not make any conclusions about the design or manner of use of the insurer's claims processing computer programs; and the market conduct examination and the superintendent's order did not mention the computer programs or any express grant of permission to use the computer programs, the use of the insurer's computer programs was not expressly permitted by the superintendent of insurance and was not exempt from the coverage of the Unfair Practices Act. Quynh Truong v. Allstate Ins. Co., 2010-NMSC-009, 147 N.M. 583, 227 P.3d 73, rev'g 2008-NMCA-051, 143 N.M. 831, 182 P.3d 814.

This section requires that actions be expressly permitted by a regulatory body. Summit Prop., Inc. v. Public Serv. Co. of N.M., 2005-NMCA-090, 138 N.M. 208, 118 P.3d 716, cert. denied, 2005-NMCERT-007, 138 N.M. 145, 117 P.3d 951.

The language "permitted under laws administered by a regulatory body" in this section requires more than the mere existence of a regulatory body in order for the exemption to apply. At a minimum, the regulatory body must actually administer the regulatory laws with respect to the party claiming the exemption, thereby exercising at least the modicum of oversight that the exempting language indicates is required. In effect, this means the regulatory body must render permission to engage in the business of the transaction through licensing, registration or some similar manifestation of "permitting" the business activity. State ex rel. Stratton v. Gurley Motor Co., 1987-NMCA-063, 105 N.M. 803, 737 P.2d 1180, cert. denied, 105 N.M. 781, 737 P.2d 893.

Bank not exempted. — A national bank is not exempted from this article by this section. Ashlock v. Sunwest Bank, 1988-NMSC-026, 107 N.M. 100, 753 P.2d 346, overruled on other grounds by Gonzales v. Surgidev Corp., 1995-NMSC-036, 120 N.M. 133, 899 P.2d 576.

Because collect call telephone rates are under the primary jurisdiction of the New Mexico public regulation commission, a regulatory agency, the rates are expressly permitted under the statute and, therefore, are not subject to claims under the New Mexico Unfair Practices Act, 57-12-1 NMSA 1978 et seq., and New Mexico Antitrust Act, Chapter 57, Article 1 NMSA 1978. Valdez v. State, 2002-NMSC-028, 132 N.M. 667, 54 P.3d 71.

Law reviews. — For annual survey of New Mexico insurance law, see 19 N.M.L. Rev. 717 (1990).