Bill Text: OR HB3485 | 2013 | Regular Session | Introduced
Bill Title: Relating to advertisements for credit services.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3485 Detail]
Download: Oregon-2013-HB3485-Introduced.html
77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3903
House Bill 3485
Sponsored by Representative DOHERTY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits person from sending advertisement that is for
mortgage loan services or other extensions of credit that are
secured by real property and that has certain characteristics
unless person has previous business relationship with recipient
or unless advertisement meets certain criteria.
A BILL FOR AN ACT
Relating to advertisements for credit services; creating new
provisions; and amending ORS 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) As used in this section:
(a) 'Advertisement' means a written or graphic statement or
representation that a person makes to a recipient in order to
solicit a business transaction with the recipient or with the
intent or expectation that the recipient will respond in such a
way as to enable the person to solicit or enter into a business
transaction with the recipient.
(b) 'Communicate' means to send or transmit a message to a
recipient through a medium that includes, but is not limited to,
direct mail, electronic mail or other electronic communication
via the Internet.
(c) 'Official message' means a statement of account, account
summary or account record, notice or other message that a person
in the ordinary course of the person's business might send to a
recipient with whom the person has a previous business
relationship, or to whom the person has a fiduciary duty or an
obligation that exists as a consequence of a law, regulation or
rule.
(d) 'Person' means an individual, public or private
corporation, nonprofit corporation, joint stock or limited
liability company, partnership, firm, association, trust company,
business trust or other business entity, government, political
subdivision, governmental agency or public body, as defined in
ORS 174.109.
(e) 'Previous business relationship' means a previous
transaction or series of transactions of a commercial or
pecuniary character between a person and a recipient that
occurred within the 18 months that preceded the date on which the
recipient received an advertisement from the person.
(f) 'Recipient' means an individual who resides in this state,
or a member of the individual's family, to whom a person
communicates, or who receives, an advertisement that is subject
to this section.
(2)(a) Except as provided in paragraph (b) of this subsection,
a person may not communicate to a recipient in this state with
whom the person does not have a previous business relationship an
advertisement concerning a mortgage loan or other extension of
credit that is or would be secured by real property if the
advertisement:
(A) Mimics or resembles, or is intended to mimic or resemble,
in a reasonable person's estimation, an official message;
(B) Includes a logo, trademark, name, title, symbol, device or
other designation that identifies or belongs to a person other
than the person that communicates the advertisement;
(C) Conceals, obscures or makes unobtrusive or inconspicuous
the purpose of the advertisement or the identity of the person
that communicates the advertisement in such a way that a
reasonable person:
(i) Would be misled as to the purpose of the advertisement or
as to the identity of the person that communicates the
advertisement; or
(ii) Would have to give close or sustained attention to the
advertisement in order to discover the purpose of the
advertisement or the identity of the person that communicates the
advertisement;
(D) Instructs the recipient to reply to the advertisement to
check the status of the recipient's mortgage loan or account or
keep the advertisement or a copy of the advertisement; or
(E) Does not include or displays information about the origin
of the advertisement that a reasonable person would deem
incomplete, inconsistent or misleading in:
(i) A return address on an envelope that contains the
advertisement; or
(ii) An electronic mail address or uniform resource locator for
an Internet site.
(b) A person may send an advertisement described in paragraph
(a) of this subsection to a recipient if the advertisement
conforms, as appropriate for the medium in which the person
communicates the advertisement, to the following requirements:
(A) The words 'THIS IS AN ADVERTISEMENT' must appear in capital
letters at the top of any written material, without any other
text on the same line and in a font or typeface that has the same
color and weight as and is as large as or larger than the font or
typeface that is otherwise most prominent in the written
material.
(B) The name or other identity of the person that communicated
the advertisement must appear in the text of the advertisement
before the text refers to the person with a pronoun or refers to
a government, political subdivision, governmental agency or
public body, as defined in ORS 174.109.
(C) A genuine return address for the person that communicated
the advertisement must appear on any envelope that contains the
advertisement or a genuine electronic mail address or uniform
resource locator that would enable the recipient to identify and
contact the person that communicated the advertisement must
appear in any electronic communication.
(3) A person's violation of this section is an unlawful
practice under ORS 646.608 that is subject to enforcement under
ORS 646.632 or an action under ORS 646.638. + }
SECTION 2. ORS 646.608, as amended by section 6, chapter 52,
Oregon Laws 2012, is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that { - they - } { + the
real estate, goods or services + } do not have or that a person
has a sponsorship, approval, status, qualification, affiliation,
or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
{ - they - } { + the real estate or goods + } are
deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if { - they - } { +
the real estate, goods or services + } are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide { - them - } { + the real estate, goods or
services + } as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when { - not authorized by - } the owner or apparent owner
{ - thereof - } { + of the goods or real estate does not
authorize the service or dismantling + }.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event { - subsequent to - }
{ + occurring after + } the time the customer enters into the
transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver { - them - }
{ + the real estate, goods or services + } as promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS 646A.030 to 646A.040.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
(rrr) Violates ORS 646A.092.
(sss) Violates a provision of ORS 646.644.
(ttt) Violates a provision of ORS 646A.295.
(uuu) Violates section 3, chapter 52, Oregon Laws 2012.
{ + (vvv) Violates section 1 of this 2013 Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(xx)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
SECTION 3. { + Section 1 of this 2013 Act and the amendments
to ORS 646.608 by section 2 of this 2013 Act apply to
advertisements that a person communicates on or after the
effective date of this 2013 Act. + }
----------
