Bill Text: OR SB487 | 2011 | Regular Session | Enrolled
Bill Title: Relating to unlawful consumer charging practices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2011-06-24 - Effective date, January 1, 2012. [SB487 Detail]
Download: Oregon-2011-SB487-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
Enrolled
Senate Bill 487
Sponsored by Senator BONAMICI (Presession filed.)
CHAPTER ................
AN ACT
Relating to unlawful consumer charging practices; creating new
provisions; and amending ORS 646.608.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + It is the intent of the Legislative Assembly to
end the practice of ongoing charging of consumer credit or debit
cards or third party payment accounts without the consumers'
explicit consent for ongoing shipments of a product or ongoing
deliveries of service. + }
SECTION 2. { + As used in this section and section 3 of this
2011 Act:
(1) 'Automatic renewal' means a plan or arrangement in which a
paid subscription or purchasing agreement is automatically
renewed at the end of a definite term for a subsequent term.
(2) 'Clear and conspicuous' means in larger type than the
surrounding text, or in contrasting type, font or color to the
surrounding text of the same size, or set off from the
surrounding text of the same size by symbols or other marks, in a
manner that clearly calls attention to the language. In the case
of an audio disclosure, 'clear and conspicuous' means in a volume
and cadence sufficient to be readily audible and understandable.
(3) 'Consumer' means any individual who seeks or acquires, by
purchase or lease, any goods, services, money or credit for
personal, family or household purposes.
(4) 'Continuous service' means a plan or arrangement in which a
paid subscription or purchasing agreement continues until the
consumer cancels the service.
(5) 'Offer terms' means the following clear and conspicuous
disclosures:
(a) That the subscription or purchasing agreement will continue
until the consumer cancels.
(b) The description of the cancellation policy that applies to
the offer.
(c) The recurring charges that will be charged to the
consumer's credit or debit card or payment account with a third
party as part of the automatic renewal or continuous service plan
or arrangement, and, if the amount of the charge will change, the
amount to which the charge will change, if known.
(d) The length of the automatic renewal term or that the
service is continuous, unless the length of the term is chosen by
the consumer.
(e) The minimum purchase obligation, if any.
Enrolled Senate Bill 487 (SB 487-B) Page 1
(6) 'Person' has the meaning given that term in ORS
646.605. + }
SECTION 3. { + (1) It is unlawful for a person that makes an
automatic renewal or continuous service offer to a consumer in
this state to do any of the following:
(a) Fail to present the automatic renewal offer terms or
continuous service offer terms in a clear and conspicuous manner
before a subscription or purchasing agreement is fulfilled and in
visual proximity, or in the case of an offer conveyed by voice,
in temporal proximity, to the request for consent to the offer.
(b) Charge the consumer's credit or debit card or payment
account with a third party for an automatic renewal or continuous
service without first obtaining the consumer's affirmative
consent to the agreement containing the automatic renewal offer
terms or continuous service offer terms.
(c) Fail to provide an acknowledgment that includes the
automatic renewal offer terms or continuous service offer terms
and information regarding how to cancel in a manner that is
capable of being retained by the consumer. If the offer includes
a free trial, the person shall also disclose in the
acknowledgment how to cancel and allow the consumer to cancel
before the consumer pays for the goods or services.
(2) A person making automatic renewal or continuous service
offers shall provide a toll-free telephone number, electronic
mail address, a post-office address only when the person directly
bills the consumer, or another cost-effective, timely and
easy-to-use mechanism for cancellation that must be described in
the acknowledgment required by subsection (1)(c) of this section.
(3) In the case of a material change in the terms of the
automatic renewal or continuous service offer that has been
accepted by a consumer, the person shall provide the consumer
with a clear and conspicuous notice of the material change and
provide information regarding how to cancel in a manner that is
capable of being retained by the consumer.
(4) The requirements of this section must be met prior to the
completion of the initial order for the automatic renewal or
continuous service, except as follows:
(a) The requirement in subsection (1)(c) of this section may be
fulfilled after completion of the initial order.
(b) The requirement in subsection (3) of this section must be
fulfilled prior to implementation of the material change.
(c) The requirements in subsection (1)(a) and (c) of this
section may be fulfilled in the initial billing statement or
invoice provided to the consumer when the person directly bills
the consumer.
(5) In the event a person sends goods, wares, merchandise or
products to a consumer under a continuous service agreement or
pursuant to an automatic renewal of a purchase without first
obtaining the consumer's affirmative consent as required in
subsection (1) of this section, the goods, wares, merchandise or
products shall for all purposes be deemed an unconditional gift
to the consumer who may use or dispose of them in any manner the
consumer sees fit without any obligation to the person including,
but not limited to, requiring the consumer to ship, or bear the
cost of shipping, any goods, wares, merchandise or products to
the person.
(6) The following are exempt from the requirements of this
section:
(a) A person that provides a service pursuant to a franchise
issued by a political subdivision of the state or a license,
Enrolled Senate Bill 487 (SB 487-B) Page 2
franchise, certificate or other authorization issued by the
Public Utility Commission of Oregon.
(b) A person that provides a service regulated by the Public
Utility Commission of Oregon, the Federal Communications
Commission or the Federal Energy Regulatory Commission.
(c) A person regulated by the Department of Consumer and
Business Services under the Insurance Code.
(d) A bank, bank holding company, or the subsidiary or
affiliate of either, or a credit union or other financial
institution or trust company as those terms are defined in ORS
706.008, that is licensed under state or federal law.
(e) A person that is regulated as a service contract seller
under ORS 646A.150 to 646A.172.
(f) A consumer finance company licensed under ORS chapter 725.
(g) A person that provides direct-to-home satellite services
subject to regulation by the Federal Communications
Commission. + }
SECTION 4. 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
Enrolled Senate Bill 487 (SB 487-B) Page 3
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.
Enrolled Senate Bill 487 (SB 487-B) Page 4
(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 3 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
Enrolled Senate Bill 487 (SB 487-B) Page 5
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 5. { + Sections 2 and 3 of this 2011 Act and the
amendments to ORS 646.608 by section 4 of this 2011 Act apply to
automatic renewal and continuous service offers entered into on
or after the effective date of this 2011 Act. + }
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Passed by Senate April 27, 2011
Repassed by Senate June 10, 2011
.............................................................
Robert Taylor, Secretary of Senate
.............................................................
Peter Courtney, President of Senate
Passed by House June 7, 2011
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Enrolled Senate Bill 487 (SB 487-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 487 (SB 487-B) Page 7
