71st OREGON LEGISLATIVE ASSEMBLY--2001 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 2092
House Bill 2816
Sponsored by Representatives MERKLEY, WITT; Representatives
ACKERMAN, BACKLUND, BARNHART, BATES, BECK, CARLSON, DEVLIN,
GARRARD, HANSEN, JOHNSON, KING, KNOPP, KROPF, KRUMMEL, LEONARD,
LOWE, MARCH, MONNES ANDERSON, RINGO, ROSENBAUM, SCHRADER,
SHETTERLY, V WALKER, WILLIAMS, Senator GEORGE
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.
Amends Unlawful Trade Practices Act. Prohibits sale of mercury
fever thermometers, mercury-added novelties and motor vehicles
containing mercury light switches. Prohibits installation of
thermostats containing mercury in commercial or residential
building. Provides exception. Prohibits sale of thermostats
containing mercury. Provides exception.
Prohibits certain actions relating to mercury and mercury
products.
Directs Oregon Department of Administrative Services to remove
mercury light switches from state-owned motor vehicles.
Directs Department of Environmental Quality to work with local
agencies to provide technical assistance to wrecking businesses
concerning removal of mercury light switches from motor vehicles.
A BILL FOR AN ACT
Relating to mercury; creating new provisions; and amending ORS
283.330, 465.012, 646.563, 646.605, 646.608, 646.638, 646.661
and 646.850.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Legislative Assembly finds that mercury is
a potent neurotoxin and persistent bioaccumulative toxin that can
cause long lasting health problems affecting all Oregonians. In
order to reduce the amount of mercury entering the environment
from the solid waste stream:
(1) A manufacturer of thermostats that contain mercury:
(a) Is responsible for collecting and managing the thermostats
it produces to ensure that the mercury contained in the
thermostats does not become part of the solid waste stream.
(b) Shall report to the Department of Environmental Quality
regarding the progress of the collection programs of the
manufacturer on a yearly basis.
(c) Shall provide incentives for and sufficient information to
purchasers of mercury thermostats to ensure that the mercury
contained in the thermostats does not become part of the solid
waste stream.
(d) Is not liable for improper disposal of thermostats
containing mercury by consumers if the manufacturer complies with
this section.
(2) A person may not crush, wreck or otherwise prepare a motor
vehicle for disposal without attempting the material recovery of
all mercury contained in mercury light switches in the vehicle.
(3) A school district or private school may not use or purchase
elemental mercury, mercury compounds or mercury-added
instructional equipment and materials. + }
SECTION 2. ORS 283.330 is amended to read:
283.330. { + (1) + } The Oregon Department of Administrative
Services shall direct and be responsible for the acquisition,
operation, maintenance, storage, repair and replacement of and
access to motor vehicles under its control. The department shall
utilize all state facilities available for the maintenance,
repair and storage of such motor vehicles.
{ + (2) The department may not acquire a motor vehicle that
contains a mercury light switch. The department shall ensure that
mercury light switches are removed from its motor vehicles and
recycled. + }
SECTION 3. ORS 465.012 is amended to read:
465.012. (1) The Department of Environmental Quality shall
provide technical assistance to toxics users and conditionally
exempt generators. In identifying the users and generators to
which the department shall give priority in providing technical
assistance, the department shall consider at least the following:
(a) Amounts and toxicity of toxics used and amounts of
hazardous waste disposed of, discharged and released;
(b) Potential for current and future toxics use reduction and
hazardous waste reduction; and
(c) The toxics related exposures and risks posed to public
health, safety and the environment.
(2) In providing technical assistance, the department shall
give priority to assisting toxics users and conditionally exempt
generators in developing and implementing an adequate toxics use
reduction and hazardous waste reduction plan as established under
ORS 465.015. The assistance may include but need not be limited
to:
(a) Information clearinghouse activities;
(b) Telephone hotline assistance;
(c) Toxics use reduction and hazardous waste reduction training
workshops;
(d) Establishing a technical publications library;
(e) The development of a system to evaluate the effectiveness
of toxics use reduction and hazardous waste reduction measures;
(f) The development of a recognition program to publicly
acknowledge toxics users and conditionally exempt generators who
develop and implement successful toxics use reduction and
hazardous waste reduction plans; and
(g) Direct on-site assistance to toxics users and conditionally
exempt generators in developing the plans.
(3) The department shall:
(a) Coordinate its technical assistance efforts with industry
trade associations and local colleges and universities as
appropriate.
(b) Follow up with toxics users who receive technical
assistance to determine whether the user or generator implemented
a toxics use reduction and hazardous waste reduction plan.
{ + (c) Coordinate and work with local agencies to provide
technical assistance to wrecking businesses certified under ORS
822.110 concerning the removal of mercury light switches from
motor vehicles. + }
(4) Technical assistance services provided under this section
shall not result in inspections or other enforcement actions
unless there is reasonable cause to believe there exists a clear
and immediate danger to the public health and safety or to the
environment. The Environmental Quality Commission may develop
rules to carry out the intent of this subsection.
SECTION 4. { + The Department of Environmental Quality shall
develop a voluntary program to recover and recycle motor vehicle
mercury light switches. + }
SECTION 5. { + The Department of Environmental Quality shall
report to the Seventy-second Legislative Assembly on the progress
of the program developed under section 4 of this 2001 Act. + }
SECTION 6. ORS 646.605 is amended to read:
646.605. As used in ORS 646.605 to 646.652:
(1) 'Appropriate court' means the circuit court of a county:
(a) Where one or more of the defendants reside;
(b) Where one or more of the defendants maintain a principal
place of business;
(c) Where one or more of the defendants are alleged to have
committed an act prohibited by ORS 646.605 to 646.652; or
(d) With the defendant's consent, where the prosecuting
attorney maintains an office.
(2) 'Documentary material' means the original or a copy of any
book, record, report, memorandum, paper, communication,
tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situate.
(3) 'Examination' of documentary material shall include
inspection, study, or copying of any such material, and taking
testimony under oath or acknowledgment in respect of any such
documentary material or copy thereof.
{ + (4) 'Mercury-added novelty' includes items containing
mercury and intended primarily for personal or household
enjoyment or adornment, such as figurines, toys, games, cards,
ornaments, yard statues, candles, jewelry, holiday decorations,
clothing, footwear and items intended for practical jokes. + }
{ - (4) - } { + (5) + } 'Person' means natural persons,
corporations, trusts, partnerships, incorporated or
unincorporated associations, and any other legal entity except
bodies or officers acting under statutory authority of this state
or the United States.
{ - (5) - } { + (6) + } 'Prosecuting attorney' means the
Attorney General or the district attorney of any county in which
a violation of ORS 646.605 to 646.652 is alleged to have
occurred.
{ - (6) - } { + (7) + } 'Real estate, goods or services'
means those which are or may be obtained primarily for personal,
family or household purposes, or which are or may be obtained for
any purposes as a result of a telephone solicitation, and
includes franchises, distributorships and other similar business
opportunities, but does not include insurance. Real estate does
not cover conduct covered by ORS chapter 90.
{ - (7) - } { + (8) + } 'Telephone solicitation' means a
solicitation where a person, in the course of the person's
business, vocation or occupation, uses a telephone or an
automatic dialing-announcing device to initiate telephonic
contact with a potential customer and the person is not one of
the following:
(a) A person who is a broker-dealer or salesperson licensed
under ORS 59.175, or a mortgage banker or mortgage broker
licensed under ORS 59.850 when the solicitation is for a security
qualified for sale pursuant to ORS 59.055;
(b) A person who is licensed or is otherwise authorized to
engage in professional real estate activity pursuant to ORS
chapter 696, when the solicitation involves professional real
estate activity;
(c) A person licensed or exempt from licensure as a builder
pursuant to ORS chapter 701, when the solicitation involves the
construction, alteration, repair, improvement or demolition of a
structure;
(d) A person licensed or otherwise authorized to sell insurance
as an agent pursuant to ORS chapter 744, when the solicitation
involves insurance;
(e) A person soliciting the sale of a newspaper of general
circulation, a magazine or membership in a book or record club
who complies with ORS 646.611, when the solicitation involves
newspapers, magazines or membership in a book or record club;
(f) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sales presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser;
(g) A supervised financial institution or parent, subsidiary or
affiliate thereof. As used in this paragraph, 'supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial
finance lender or insurer that is subject to regulation by an
official or agency of this state or of the United States;
(h) A person who is authorized to conduct prearrangement or
preconstruction funeral or cemetery sales, pursuant to ORS
chapter 692, when the solicitation involves prearrangement or
preconstruction funeral or cemetery plans;
(i) A person who solicits the services provided by a cable
television system licensed or franchised pursuant to state, local
or federal law, when the solicitation involves cable television
services;
(j) A person or affiliate of a person whose business is
regulated by the Public Utility Commission of Oregon;
(k) A person who sells farm products as defined by ORS chapter
576 if the solicitation neither intends to nor actually results
in a sale that costs the purchaser in excess of $100;
(L) An issuer or subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
or subsection (g) of that section;
(m) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer when the solicitation involves answering services; or
(n) A telecommunications utility with access lines of 15,000 or
less or a cooperative telephone association when the solicitation
involves regulated goods or services.
{ - (8) - } { + (9) + } 'Trade' and 'commerce' mean
advertising, offering or distributing, whether by sale, rental or
otherwise, any real estate, goods or services, and includes any
trade or commerce directly or indirectly affecting the people of
this state.
{ - (9) - } { + (10) + } 'Unconscionable tactics' include,
but are not limited to, actions by which a person:
(a) Knowingly takes advantage of a customer's physical
infirmity, ignorance, illiteracy or inability to understand the
language of the agreement;
(b) Knowingly permits a customer to enter into a transaction
from which the customer will derive no material benefit; or
(c) Permits a customer to enter into a transaction with
knowledge that there is no reasonable probability of payment of
the attendant financial obligation in full by the customer when
due.
{ - (10) - } { + (11) + } A willful violation occurs when
the person committing the violation knew or should have known
that the conduct of the person was a violation.
SECTION 7. 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:
(A) Required by prescription by a person licensed under ORS
chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and proper cleanup of mercury
should breakage occur.
(y) Sells a mercury thermostat 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. + }
{ - (w) - } { + (z) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
{ - (x) - } { + (aa) + } Violates ORS 646.850 (1).
{ - (y) - } { + (bb) + } Violates any requirement of ORS
646.661 to 646.686.
{ - (z) - } { + (cc) + } Violates the provisions of ORS
128.801 to 128.898.
{ - (aa) - } { + (dd) + } Violates ORS 646.883 or 646.885.
{ - (bb) - } { + (ee) + } Violates any provision of ORS
646.195.
{ - (cc) - } { + (ff) + } Violates ORS 646.569.
{ - (dd) - } { + (gg) + } Violates the provisions of ORS
646.859.
{ - (ee) - } { + (hh) + } Violates ORS 759.290.
{ - (ff) - } { + (ii) + } Violates ORS 646.872.
{ - (gg) - } { + (jj) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
{ - (hh) - } { + (kk) + } Violates ORS 646.563.
{ - (ii) - } { + (LL) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
{ - (jj) - } { + (mm) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
{ - (kk) - } { + (nn) + } Violates ORS 646.892 or 646.894.
{ - (LL) - } { + (oo) + } Violates any provision of ORS
646.249 to 646.259.
{ - (mm) - } { + (pp) + } Violates ORS 646.384.
{ - (nn) - } { + (qq) + } Violates ORS 646.871.
{ - (oo) - } { + (rr) + } Violates ORS 822.046.
{ - (pp) - } { + (ss) + } Violates ORS 128.001.
{ - (qq) - } { + (tt) + } Violates ORS 646.649 (2) to (4).
{ - (rr) - } { + (uu) + } Violates ORS 646.877 (2) to (5).
{ - (ss) - } { + (vv) + } Violates ORS 87.686.
{ - (tt) - } { + (ww) + } Violates ORS 646.651.
{ - (uu) - } { + (xx) + } Violates ORS 646.879.
(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) No action or suit shall 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 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
SECTION 8. { + The amendments to ORS 646.608 by section 7 of
this 2001 Act become operative on July 1, 2002. + }
SECTION 9. ORS 646.608, as amended by section 7 of this 2001
Act, 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:
(A) Required by prescription by a person licensed under ORS
chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and proper cleanup of mercury
should breakage occur.
(y) Sells a mercury thermostat 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.
{ + (z) Manufactures, sells or distributes for promotional
purposes mercury-added novelties if the person knows or has
reason to know that the product contains mercury. + }
{ - (z) - } { + (aa) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
{ - (aa) - } { + (bb) + } Violates ORS 646.850 (1).
{ - (bb) - } { + (cc) + } Violates any requirement of ORS
646.661 to 646.686.
{ - (cc) - } { + (dd) + } Violates the provisions of ORS
128.801 to 128.898.
{ - (dd) - } { + (ee) + } Violates ORS 646.883 or 646.885.
{ - (ee) - } { + (ff) + } Violates any provision of ORS
646.195.
{ - (ff) - } { + (gg) + } Violates ORS 646.569.
{ - (gg) - } { + (hh) + } Violates the provisions of ORS
646.859.
{ - (hh) - } { + (ii) + } Violates ORS 759.290.
{ - (ii) - } { + (jj) + } Violates ORS 646.872.
{ - (jj) - } { + (kk) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
{ - (kk) - } { + (LL) + } Violates ORS 646.563.
{ - (LL) - } { + (mm) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
{ - (mm) - } { + (nn) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
{ - (nn) - } { + (oo) + } Violates ORS 646.892 or 646.894.
{ - (oo) - } { + (pp) + } Violates any provision of ORS
646.249 to 646.259.
{ - (pp) - } { + (qq) + } Violates ORS 646.384.
{ - (qq) - } { + (rr) + } Violates ORS 646.871.
{ - (rr) - } { + (ss) + } Violates ORS 822.046.
{ - (ss) - } { + (tt) + } Violates ORS 128.001.
{ - (tt) - } { + (uu) + } Violates ORS 646.649 (2) to (4).
{ - (uu) - } { + (vv) + } Violates ORS 646.877 (2) to (5).
{ - (vv) - } { + (ww) + } Violates ORS 87.686.
{ - (ww) - } { + (xx) + } Violates ORS 646.651.
{ - (xx) - } { + (yy) + } Violates ORS 646.879.
(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) No action or suit shall 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 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
SECTION 10. { + The amendments to ORS 646.608 by section 9 of
this 2001 Act become operative on January 1, 2003. + }
SECTION 11. ORS 646.608, as amended by sections 7 and 9 of this
2001 Act, 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:
(A) Required by prescription by a person licensed under ORS
chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and proper cleanup of mercury
should breakage occur.
(y) Sells a mercury thermostat 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.
(z) Manufactures, sells or distributes for promotional purposes
mercury-added novelties if the person knows or has reason to know
that the product contains mercury.
{ + (aa) Installs a mercury thermostat in a commercial or
residential building, unless no viable substitute for a mercury
thermostat exists.
(bb) Sells or offers for sale a motor vehicle manufactured
after January 1, 2004, that contains mercury light switches. + }
{ - (aa) - } { + (cc) + } Violates the provisions of ORS
803.375, 803.385 or 815.410 to 815.430.
{ - (bb) - } { + (dd) + } Violates ORS 646.850 (1).
{ - (cc) - } { + (ee) + } Violates any requirement of ORS
646.661 to 646.686.
{ - (dd) - } { + (ff) + } Violates the provisions of ORS
128.801 to 128.898.
{ - (ee) - } { + (gg) + } Violates ORS 646.883 or 646.885.
{ - (ff) - } { + (hh) + } Violates any provision of ORS
646.195.
{ - (gg) - } { + (ii) + } Violates ORS 646.569.
{ - (hh) - } { + (jj) + } Violates the provisions of ORS
646.859.
{ - (ii) - } { + (kk) + } Violates ORS 759.290.
{ - (jj) - } { + (LL) + } Violates ORS 646.872.
{ - (kk) - } { + (mm) + } Violates ORS 646.553 or 646.557
or any rule adopted pursuant thereto.
{ - (LL) - } { + (nn) + } Violates ORS 646.563.
{ - (mm) - } { + (oo) + } Violates ORS 759.690 or any rule
adopted pursuant thereto.
{ - (nn) - } { + (pp) + } Violates the provisions of ORS
759.705, 759.710 and 759.720 or any rule adopted pursuant
thereto.
{ - (oo) - } { + (qq) + } Violates ORS 646.892 or 646.894.
{ - (pp) - } { + (rr) + } Violates any provision of ORS
646.249 to 646.259.
{ - (qq) - } { + (ss) + } Violates ORS 646.384.
{ - (rr) - } { + (tt) + } Violates ORS 646.871.
{ - (ss) - } { + (uu) + } Violates ORS 822.046.
{ - (tt) - } { + (vv) + } Violates ORS 128.001.
{ - (uu) - } { + (ww) + } Violates ORS 646.649 (2) to (4).
{ - (vv) - } { + (xx) + } Violates ORS 646.877 (2) to (5).
{ - (ww) - } { + (yy) + } Violates ORS 87.686.
{ - (xx) - } { + (zz) + } Violates ORS 646.651.
{ - (yy) - } { + (aaa) + } Violates ORS 646.879.
(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) No action or suit shall 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 183.310 to
183.550 declaring the conduct to be unfair or deceptive in trade
or commerce.
SECTION 12. { + The amendments to ORS 646.608 by section 11 of
this 2001 Act become operative on January 1, 2004. + }
SECTION 13. ORS 646.563 is amended to read:
646.563. A person { - is in violation of ORS 646.608
(1)(hh) - } { + engages in an unlawful practice + } if, during a
telephone solicitation, the called party states a desire not to
be called again and the person making the telephone solicitation
makes a subsequent telephone solicitation of the called party at
that number.
SECTION 14. ORS 646.638 is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be,
may award punitive damages and the court may provide such
equitable relief as it deems necessary or proper.
(2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
(3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
(5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
(6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608, running of the statute of limitations with respect
to every private right of action under this section and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof.
(7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
(8) This section does not apply to any method, act or practice
described in ORS 646.608 { - (1)(w) - } { + (1)(z) + }.
Actions for violation of laws relating to odometers are provided
under ORS 815.410 and 815.415.
SECTION 15. { + The amendments to ORS 646.638 by section 14 of
this 2001 Act become operative on July 1, 2002. + }
SECTION 16. ORS 646.638, as amended by section 14 of this 2001
Act, is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be,
may award punitive damages and the court may provide such
equitable relief as it deems necessary or proper.
(2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
(3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
(5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
(6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608, running of the statute of limitations with respect
to every private right of action under this section and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof.
(7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
(8) This section does not apply to any method, act or practice
described in ORS 646.608 { - (1)(z) - } { + (1)(aa) + }.
Actions for violation of laws relating to odometers are provided
under ORS 815.410 and 815.415.
SECTION 17. { + The amendments to ORS 646.638 by section 16 of
this 2001 Act become operative on January 1, 2003. + }
SECTION 18. ORS 646.638, as amended by sections 14 and 16 of
this 2001 Act, is amended to read:
646.638. (1) Except as provided in subsection (8) of this
section, any person who suffers any ascertainable loss of money
or property, real or personal, as a result of willful use or
employment by another person of a method, act or practice
declared unlawful by ORS 646.608, may bring an individual action
in an appropriate court to recover actual damages or $200,
whichever is greater. The court or the jury, as the case may be,
may award punitive damages and the court may provide such
equitable relief as it deems necessary or proper.
(2) Upon commencement of any action brought under subsection
(1) of this section the party bringing the action shall mail a
copy of the complaint or other initial pleading to the Attorney
General and, upon entry of any judgment or decree in the action,
shall mail a copy of such judgment or decree to the Attorney
General. Failure to mail a copy of the complaint shall not be a
jurisdictional defect, but no judgment shall be entered for the
plaintiff until proof of mailing is filed with the court. Proof
of mailing may be by affidavit or by return receipt of mailing.
(3) Except as provided in subsection (4) of this section, the
court may award reasonable attorney fees to the prevailing party
in an action under this section.
(4) The court may not award attorney fees to a prevailing
defendant under the provisions of subsection (3) of this section
if the action under this section is maintained as a class action
pursuant to ORCP 32.
(5) Any permanent injunction or final judgment or order of the
court made under ORS 646.632 or 646.636 shall be prima facie
evidence in an action brought under this section that the
respondent used or employed a method, act or practice declared
unlawful by ORS 646.608, but an assurance of voluntary
compliance, whether or not approved by the court, shall not be
evidence of such violation.
(6) Actions brought under this section shall be commenced
within one year from the discovery of the unlawful method, act or
practice. However, whenever any complaint is filed by a
prosecuting attorney to prevent, restrain or punish violations of
ORS 646.608, running of the statute of limitations with respect
to every private right of action under this section and based in
whole or in part on any matter complained of in said proceeding
shall be suspended during the pendency thereof.
(7) Notwithstanding subsection (6) of this section, in any
action brought by a seller or lessor against a purchaser or
lessee of real estate, goods or services, such purchaser or
lessee may assert any counterclaim the purchaser or lessee has
arising out of a violation of ORS 646.605 to 646.652.
(8) This section does not apply to any method, act or practice
described in ORS 646.608 { - (1)(aa) - } { + (1)(cc) + }.
Actions for violation of laws relating to odometers are provided
under ORS 815.410 and 815.415.
SECTION 19. { + The amendments to ORS 646.638 by section 18 of
this 2001 Act become operative on January 1, 2004. + }
SECTION 20. ORS 646.850 is amended to read:
646.850. (1) Any person offering for sale or selling new or
reconditioned telephone handsets or keysets, private branch
exchanges or private automatic branch exchanges of not more than
a 20-station capacity shall disclose clearly, in writing, when
reasonable, before sale all of the following information:
(a) Whether the equipment uses pulse, tone, pulse-or-tone or
other signaling methods.
(b) Whether the equipment can access tone generated services.
(c) Whether the equipment is registered with the Federal
Communications Commission under applicable federal regulations.
(d) The person responsible for repair of the equipment.
(e) Minimum charges, if any, for repairs, handling and
shipping.
(f) The terms of any written warranty offered with the
equipment.
(2) A person who violates subsection (1) of this section
commits an unlawful practice under ORS 646.608 { - (1)(x) - } .
The requirement under subsection (1) of this section is subject
to enforcement and penalty as provided under ORS 646.605 to
646.652.
SECTION 21. ORS 646.661 is amended to read:
646.661. As used in this ORS 646.608 and 646.661 to 646.691,
unless the context requires otherwise:
(1) 'Business day' means any day except a Sunday or a legal
holiday.
(2) 'Buyer' means a person who purchases health spa services.
(3) 'Conspicuous' has the meaning given that term in ORS
71.2010 (10).
(4) 'Health spa' means any person engaged, as a primary
purpose, in the sale of instruction, training, assistance or use
of facilities which are purported to assist patrons in physical
exercise, weight control or figure development. The term also
includes any person engaged primarily in the sale of the right or
privilege to use tanning booths, exercise equipment or
facilities, such as a sauna, whirlpool bath, weight-lifting room,
massage, steam room, or other exercising machine or device.
'Health spa ' does not include any facility owned and operated by
the State of Oregon or any of its political subdivisions.
(5) 'Health spa services' means services, privileges or rights
offered for sale by a health spa.
(6) 'Person' has the meaning given that term in ORS 646.605
{ - (4) - } .
SECTION 22. { + Any person producing or selling mercury-added
novelties as defined in ORS 646.605 shall:
(1) Notify retailers of mercury-added novelties of the
prohibition on the manufacture, sale or distribution of
mercury-added novelties under ORS 646.608, as amended by section
9 of this 2001 Act.
(2) Inform retailers of mercury-added novelties of the proper
disposal methods for any remaining inventory held by the
retailers. + }
SECTION 23. { + Section 22 of this 2001 Act is repealed on
January 2, 2004. + }
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