75th OREGON LEGISLATIVE ASSEMBLY--2010 Special 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 53

                           A-Engrossed

                        Senate Bill 1001
                Ordered by the Senate February 15
          Including Senate Amendments dated February 15

Printed pursuant to Senate Interim Rule 213.28 by order of the
  President of the Senate in conformance with presession filing
  rules, indicating neither advocacy nor opposition on the part
  of the President (at the request of Senate Interim Committee on
  Consumer Protection and Public Affairs)

                             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.

  Makes application of automatic renewal provision in consumer
contract   { - or promotional or free trial offer - }  unlawful
trade practice unless provision or offer complies with notice and
express consent requirements.
  Makes charging early termination fee for cancellation of
consumer contract unlawful trade practice unless charging
complies with notice and express consent requirements.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to unlawful consumer contract practices; creating new
  provisions; amending ORS 646.608; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2010 Act is added to and made
a part of ORS 646.605 to 646.652. + }
  SECTION 2.  { + (1) As used in this section:
  (a) 'Automatic renewal provision' means a provision by which
the term of a consumer contract is extended at the end of a
definite term for a subsequent term unless the consumer cancels
the contract.
  (b) 'Clear and conspicuous' means language that is readily
understandable and presented in such size, color, contrast and
location, or audibility and cadence, compared to other language
as to be readily noticed and understood, and that is in close
proximity to the request for consent to a contract offer or any
specific term or provision of a contract offer.
  (c) 'Consumer' means an individual who seeks to purchase, or
purchases, goods or services for personal, family or household
purposes.
  (d)(A) 'Consumer contract' means any agreement, or renewal of
an agreement, between a person and a consumer for the sale and
purchase of goods or services for personal, family or household
purposes.
  (B) 'Consumer contract' does not include:
  (i) An agreement for insurance;
  (ii) A certificate of deposit;
  (iii) A consumer finance loan, as that term is defined in ORS
725.010;
  (iv) A rental agreement, as that term is defined in ORS 90.100;
  (v) A lease-purchase agreement, as that term is defined in ORS
646A.120;
  (vi) A service contract, as that term is defined in ORS
646A.154; or
  (vii) A contract for services that are subject to the federal
Communications Act of 1934 (47 U.S.C. 151 et seq.), when the
contract contains an automatic renewal provision that extends the
contract less than 32 days beyond the end of the term of the
original contract or of any previous renewal of the contract and
presents information about any early termination fee provision in
the contract in a clear and conspicuous manner at the time the
consumer enters into the contract.
  (e) 'Early termination fee' means a fee charged to a consumer
for the consumer's cancellation of a consumer contract before the
end of the initial contract period or of any extension of an
initial contract period by an automatic renewal provision or
otherwise.
  (f) 'Express consent' or 'expressly consent' means a consumer's
agreement, as indicated by the consumer's written signature, oral
words of acceptance or other indicia, to become legally obligated
under a consumer contract or a specific term or provision of the
contract.
  (2) A person may not apply an automatic renewal provision that
extends a consumer contract at the end of the term of the
original contract, or at the end of any previous renewal of the
contract, unless the person:
  (a) Presents the automatic renewal provision in a clear and
conspicuous manner at the time the contract offer is made;
  (b) Provides a procedure to cancel the consumer contract in the
same manner by which the consumer entered into the contract or as
otherwise expressly consented to by the consumer. In the case of
a consumer contract that was agreed to telephonically, the person
must provide a toll-free number by which the consumer may receive
either an immediate response and confirmation of cancellation, or
a response and confirmation within three business days after
having left a message; and
  (c) Where the automatic renewal provision extends the consumer
contract more than 31 days beyond the end of the term of the
original contract or of any previous renewal of the contract:
  (A) Provides notice to the consumer of the automatic renewal
provision and that the contract will automatically renew unless
the consumer cancels the contract using the procedure required by
paragraph (b) of this subsection, at least 30 days and no more
than 60 days prior to the date upon which the contract ends and
will automatically renew; and
  (B) Provides the consumer with periodic statements of charges
owed that contain information about the cancellation procedure
required by paragraph (b) of this subsection. The statements
required by this subparagraph must be provided at the same
interval as the person charges or bills the consumer.
  (3) A person may not charge an early termination fee for
cancellation of a consumer contract unless the person:
  (a) Presents the early termination fee provision in a clear and
conspicuous manner at the time the contract offer is made; and
  (b) Receives the consumer's express consent to the early
termination fee provision.
  (4) In addition to any of the remedies available under ORS
646.605 to 646.652, in any situation in which a person violates
one or more of the provisions of this section, the provision of
the consumer contract that is the source of the violation is void
and unenforceable. + }
  SECTION 3. ORS 646.608 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 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 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 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 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.
  (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 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 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 a provision of section 2 of this 2010
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 4.  { + Section 2 of this 2010 Act and the amendments
to ORS 646.608 by section 3 of this 2010 Act apply to consumer
contracts entered into on or after the effective date of this
2010 Act. + }
  SECTION 5.  { + This 2010 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2010 Act takes effect on its
passage. + }
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