Bench & Bar September/October 2026

THE ATTORNEY GENERAL’S ENFORCEMENT

EXPANDING KENTUCKY’S CONSUMER PROTECTION FRAMEWORK While House Bill 869 strengthens KCPA’s enforcement framework, the remaining consumer protection laws enacted in the 2026 Session reflect a complementary leg islative approach. The General Assembly expanded Kentucky’s consumer protection framework by enacting targeted statutes addressing industries and markets pre senting distinctive regulatory risks. These enactments recognize that certain sectors, whether because of technological inno vation, market complexity, or heightened consumer vulnerability, require protections beyond those provided by KCPA alone. Considered together, they illustrate the General Assembly’s continuing use of a lay ered regulatory framework in which KCPA supplies the Commonwealth’s foundational enforcement authority while sector-specific statutes provide additional safeguards tai lored to emerging consumer protection challenges. SB 153 Senate Bill 153 establishes new consumer protections for homeowners seeking prop erty repairs or insurance claim assistance following a natural disaster or other cat astrophic event. 30 The legislation amends KRS 367.620 to clarify the scope of “goods or services relating to real estate,” requires contractors to provide additional consumer disclosures before entering into certain con tracts, prohibits specified contract terms and cancellation fees, and expands the list of prohibited contractor practices. 31 It also authorizes the Attorney General, following certain declared states of emergency, to require contractors operating within des ignated disaster areas to obtain emergency registration. 32 The Attorney General serves as the pri mary civil enforcement authority for these provisions. SB 153 authorizes the Attorney General to investigate suspected violations, seek injunctive relief, obtain restitution for affected consumers, and pursue civil pen alties under KCPA. 33 Additionally, SB 153 strengthens criminal enforcement by pro viding that certain prohibited contractor conduct constitutes a fraudulent insurance

Rather, it clarified both what constitutes a “violation” for purposes of assessing civil penalties and the factors courts should consider in determining the appropriate penalty. The legislation makes clear that a violation is not limited to a single transac tion or isolated act. 24 Instead, continuing or repeated unlawful conduct may give rise to separate violations where the same decep tive or unfair practice is directed toward multiple consumers or persists over time. 25 Thus, a business that repeatedly employs the same unlawful sales practice, advertising campaign, deceptive webpage, or contract provision may incur separate violations for each prohibited act or practice, rather than having an entire course of conduct treated as a single violation. HB 869 leaves a defendant’s maximum exposure exactly where the statute has always placed it, on the number of violations proven, and simply puts the counting rule beyond dispute. This clarification is particularly significant in cases involving business practices that are repeated over time or implemented through standardized policies, advertisements, or electronic platforms. HB 869 also identifies a nonexclusive list of factors for courts to consider when assess ing a civil penalty. 26 Those factors now specifically include the nature and extent of the misconduct, the number of con sumers affected, whether the conduct was knowing or intentional, the persistence of the unlawful practice, the defendant’s efforts to remedy the violation, and other circum stances bearing on the need for deterrence. 27 Importantly, “proof of actual injury” is not to be considered in the assessment of the civil penalty. 28 However, the Attorney General is still required to establish that the conduct was “willful” to obtain a civil penalty which has been described as “a conscious wrong or evil purpose on part of the act, or at least inexcusable carelessness whether the act is right or wrong.” 29 Ultimately, HB 869 clarifies the Attorney General’s enforcement authority, strength ens one of KCPA’s principal deterrent mechanisms and reinforces the Act’s abil ity to address widespread consumer harm.

AUTHORITY AND HOUSE BILL 869

While KCPA provides for a private cause of action pursuant to KRS 367.220, the Gen eral Assembly vested the Attorney General with primary responsibility for enforcing the Act on behalf of the public. 12 The Court of Appeals has described the Attorney Gen eral as the “policeman of the marketplace” whereby “when he deems it of sufficient importance to the public welfare” he may “seek injunctive relief against threatened unfair trade practices and civil penalties against such practices already commit ted.” 13 This allocation of authority reflects a legislative determination that widespread consumer harm is best addressed through centralized public enforcement rather than piecemeal private litigation. 14 Ultimately, the General Assembly intended for KCPA “in the hand of the Attorney Gen eral, [to] be a flexible and effective means of combating abusive trade practices however novel their forms or well disguised their sources.” 15 KCPA authorizes the Attorney General to investigate suspected viola tions through the issuance of investigative subpoenas, 16 seek injunctive relief to halt unlawful practices, 17 negotiate Assurances of Voluntary Compliance, 18 obtain restitu tion for injured consumers, 19 and pursue civil penalties against those who violate the Act. 20 Together, these tools enable the Attor ney General to ensure companies “walk the line” 21 by addressing systemic misconduct before it becomes entrenched while pro viding meaningful relief to consumers and deterring future violations. Of all these tools, the imposition of civil penalties is arguably the most potent. Since KCPA’s enactment in 1972, the Attorney General has been authorized to seek a civil penalty of up to $2,000 per violation. 22 However, until recently what constituted a “violation” and how the penalty should be calculated were not explicitly addressed by KCPA. 23 2026 HB 869 addresses both questions. House Bill 869 did not increase the maxi mum civil penalty available under KCPA.

15 bench & bar