Bill Text: OR SB292 | 2011 | Regular Session | Enrolled
Bill Title: Relating to free offers to consumers.
Spectrum: Unknown
Status: (Passed) 2011-06-24 - Effective date, January 1, 2012. [SB292 Detail]
Download: Oregon-2011-SB292-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 292
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)
CHAPTER ................
AN ACT
Relating to free offers to consumers; creating new provisions;
and amending ORS 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + Section 2 of this 2011 Act is added to and made
a part of ORS 646.605 to 646.652. + }
SECTION 2. { + (1) As used in this section:
(a) 'Affirmative consent' means a consumer's agreement to incur
a financial obligation as a result of accepting a free offer, or
to provide the consumer's billing information, given or made in
the manner specifically identified for the consumer to indicate
the consumer's agreement.
(b) 'Billing information' means any record or information
compiled or maintained with respect to a consumer that identifies
the consumer and provides a means by which the consumer's
financial obligation incurred by accepting a free offer may be
paid or otherwise satisfied, including but not limited to
information pertaining to a consumer's credit card, payment card,
charge card, debit card, checking, savings or other banking
account, and electronic funds transfer information.
(c) 'Clear and conspicuous information' 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 free offer.
(d) 'Consumer' means an individual who seeks to accept or
accepts a free offer.
(e)(A) 'Free offer' means an offer of goods or services without
cost, or for a one-time payment to cover only incidental charges
such as shipping and handling, to a consumer that, if accepted,
causes the consumer to incur a financial obligation for:
(i) The goods or services received;
(ii) Additional goods or services other than those initially
received; or
(iii) Enrollment in a membership, subscription or service
contract as a result of accepting the offer.
(B) 'Free offer' does not include a free good or service that
is received by a consumer as a result of the consumer's entering
into an agreement for enrollment in a membership, subscription or
Enrolled Senate Bill 292 (SB 292-B) Page 1
service contract that is not otherwise a free offer or a
consequence of the consumer's agreement to accept a free offer.
(2) A person may not make a free offer to a consumer, or impose
a financial obligation on the consumer as a result of the
consumer's acceptance of a free offer, unless the person provides
the consumer with clear and conspicuous information regarding the
terms of the free offer before the consumer agrees to accept the
free offer, including at a minimum:
(a) Identification of all goods or services, or enrollments in
a membership, subscription or service contract, that the consumer
will receive or incur a financial obligation for as a result of
accepting the free offer;
(b) The cost to the consumer of any financial obligation the
consumer will incur if the consumer accepts the free offer,
including any fees or charges;
(c) Any requirement, if applicable, that the consumer take
affirmative action to reject the free offer and instructions
about how the consumer is to indicate the consumer's rejection of
the free offer;
(d) A statement, if applicable, that by accepting the free
offer, the consumer will become obligated for additional goods or
services, or enrollment in a membership, subscription or service
contract, unless the consumer takes affirmative action to cancel
the free offer or otherwise reject receipt of the additional
goods or services or the enrollment in a membership, subscription
or service contract;
(e) Except as provided in paragraph (h) of this subsection, the
consumer's right to cancel the free offer using procedures
specifically identified for that purpose that, at a minimum,
enable the consumer to cancel by calling a toll-free telephone
number or to cancel in a manner substantially similar to that by
which the consumer accepted the free offer;
(f) The time period during which the consumer must cancel in
order to avoid incurring a financial obligation as a result of
accepting the free offer;
(g) If applicable, the consumer's right to receive a credit on
goods or services received as a result of accepting the free
offer when the goods or services are returned or rejected, and
the time period during which the goods or services must be
returned or rejected for the purpose of receiving a credit; and
(h) With respect to a free offer that is for a publication,
including but not limited to a magazine, newspaper or other
periodical, a statement that the consumer will receive
information regarding the consumer's right to cancel the free
offer and an explanation of the procedure to cancel the free
offer at the time the consumer receives an invoice to pay for the
publication, including but not limited to written notice of
cancellation by mail to the person providing the free offer.
(3) A person may not cause a consumer to incur a financial
obligation as a result of accepting a free offer unless:
(a) The person obtains the consumer's billing information
directly from the consumer; or
(b) The consumer gives affirmative consent at the time the
consumer accepts a free offer for the person to provide billing
information to a person other than the person making a free
offer. For purposes of this subsection, a person obtains a
consumer's billing information directly from the consumer if it
is obtained by the person or by the person's agent or employee.
(4) A person may not impose a financial obligation on a
consumer as a result of the consumer's acceptance of a free offer
Enrolled Senate Bill 292 (SB 292-B) Page 2
unless the consumer's affirmative consent to the terms of the
free offer as set forth in subsection (2) of this section is
obtained.
(5) A person that makes a free offer to a consumer may not fail
or refuse to cancel the free offer if the consumer has used, or
made reasonable efforts to attempt to use, one of the procedures
required by subsection (2)(e) of this section.
(6) A person who violates a provision of this section engages
in an unlawful practice subject to enforcement and penalty under
ORS 646.605 to 646.652.
(7) This section does not apply to free offers made in
connection with services that are subject to the federal
Communications Act of 1934 (47 U.S.C. 151 et seq.). + }
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.
Enrolled Senate Bill 292 (SB 292-B) Page 3
(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.
Enrolled Senate Bill 292 (SB 292-B) Page 4
(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 2011
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.
Enrolled Senate Bill 292 (SB 292-B) Page 5
(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 2011 Act and the amendments
to ORS 646.608 by section 3 of this 2011 Act apply to free
offers, as defined in section 2 of this 2011 Act, made on or
after the effective date of this 2011 Act. + }
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Passed by Senate April 26, 2011
Repassed by Senate June 10, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 6, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 292 (SB 292-B) Page 6
Received by Governor:
......M.,............., 2011
Approved:
......M.,............., 2011
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2011
.............................................................
Kate Brown, Secretary of State
Enrolled Senate Bill 292 (SB 292-B) Page 7
