WPI 310.09 Definition—Trade or Commerce

Use this instruction with WPI 310.01 (Elements of a Violation of the Consumer Protection Act) only when “trade or commerce” is at issue.

RCW 19.86.010; see also Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 785, 719 P.2d 531 (1986). If there is no material dispute of fact regarding the “trade or commerce” element, the parties should stipulate that the element is met or the judge should so rule, and this instruction should not be given.

Professional business services. In Michael v. Mosquera-Lacey, 165 Wn.2d 595, 602–03, 200 P.3d 695 (2009), the Washington Supreme Court held that the Consumer Protection Act applies to only the entrepreneurial activities that are part of professional service business (e.g., medical, legal, and dental practices). Examples of the “trade or commerce” part of a professional business include price-setting, marketing, and billing activities. Michael, 165 Wn.2d at 602–03; see also Ramos v. Arnold, 141 Wn.App. 11, 20, 169 P.3d 482 (2007).

Contrasted with entrepreneurial activities are the activities involved in providing the substantive professional services of the business practice, which are not covered under the CPA. For example, the CPA does not cover “a doctor's skills in examining, diagnosing, treating, or caring for a patient.” Michael, 165 Wn.2d at 602–03 (citing Wright v. Jeckle, 104 Wn.App. 478, 16 P.3d 1268 (2001)).

It may not always be easy to distinguish professional and entrepreneurial services. For example, in Wright, the Court of Appeals held that a doctor who prescribes the weight-loss drug fen-phen to his patients can be engaged in entrepreneurial activity depending on the extent to which the doctor advertises, markets, and sells the drug. Wright, 104 Wn.App. at 484–85 (a doctor who is in the business of selling diet drugs would be subject to the CPA, whereas a doctor who is practicing medicine would not); see also Young v. Savidge, 155 Wn.App. 806, 825–27, 230 P.3d 222 (2010) (factual question whether dentist demonstrated entrepreneurial motive by withholding information about using nickel in crowns when advertisement indicated gold, porcelain, or stainless steel).

Publishers. Publishing information does not necessarily constitute advertising in the course of trade or commerce. For example, the court in Fidelity Mortgage Corp. v. Seattle Times Co., 131 Wn.App. 462, 128 P.3d 621 (2005), held that the Seattle Times did not “advertise” when it published quarterly charts showing interest rates for mortgages. Because it was not an advertisement, this activity did not constitute “trade or commerce.”