Chapter 338 Oregon Laws 2003

AN ACT

SB 739

Relating to unused property.

Be It Enacted by the People of the State of Oregon:

SECTION 1. As used in sections 2, 3 and 4 of this 2003 Act:

(1) “Baby food” or “infant formula” means food manufactured, packaged and labeled specifically for sale for consumption by a child under the age of two years.

(2) “Medical device” means an object or substance that is:

(a) Required under federal law to bear the label “Caution: Federal law requires dispensing by or on the order of a physician”; or

(b) Defined by federal law as a medical device and is intended:

(A) For use in the diagnosis of disease or other conditions in humans or animals;

(B) For use in the cure, mitigation, treatment or prevention of disease in humans or animals; or

(C) To affect the structure or a function of the bodies of humans or animals without achieving any of its principal intended purposes through metabolism or through chemical action within or on the bodies of humans or animals.

(3) “New and unused property” means tangible personal property:

(a) That was acquired by a person directly from a producer, manufacturer, wholesaler or retailer in the ordinary course of business and has not been used since its production or manufacture; or

(b) That was packaged when it was originally produced or manufactured and the property is in its original and unopened package.

(4)(a) “Nonprescription drugs” means drugs that may be sold without a prescription and that, in accordance with the requirements of the statutes and regulations of this state and the federal government, are:

(A) Prepackaged for use by a consumer;

(B) Prepared by a manufacturer or producer for use by a consumer; and

(C) Labeled and unadulterated.

(b) “Nonprescription drugs” does not include herbal products, dietary supplements, botanical extracts or vitamins.

(5) “Prior conviction” means a conviction that was entered prior to imposing sentence on the current crime, provided that the prior conviction is based on a crime committed in a separate criminal episode.

(6) “Unused property market” means an event:

(a) Where at least two persons offer new and unused property for sale or exchange and the person organizing or conducting the event charges a fee upon the sale or exchange of the new and unused property;

(b) Where at least two persons offer new and unused property for sale or exchange and a prospective buyer must pay a fee for admission to an area where new and unused property is offered for sale or exchange; or

(c) Where new and unused property is offered for sale or exchange for more than 12 days in one 12-month period.

SECTION 2. (1) Except as provided in subsection (2) of this section, a person may not offer for sale or exchange or knowingly permit the sale or exchange of baby food, infant formula, cosmetics, personal care products, nonprescription drugs or medical devices at an unused property market.

(2) A person may sell or exchange the items listed in subsection (1) of this section if the person:

(a) Has a written authorization that identifies the person as an authorized representative of the manufacturer or distributor of those items; and

(b) Makes the written authorization available for public inspection.

(3)(a) A person who violates this section commits a Class C misdemeanor.

(b) A person who violates this section and who has one prior conviction under this section that was entered within the last 10 years commits a Class B misdemeanor.

(c) A person who violates this section and who has two or more prior convictions under this section that were entered within the last 10 years commits a Class A misdemeanor.

SECTION 3. (1) When a person purchases more than 10 items of new and unused property for resale at an unused property market, the person shall maintain a record for two years after the date of purchase.

(2) The record required in subsection (1) of this section must contain:

(a) The date of the purchase of the new and unused property;

(b) The name and address of the person from which the new and unused property was purchased;

(c) A description and identification of the new and unused property; and

(d) The price paid for the new and unused property.

(3) A person shall, upon request, provide the record described in subsection (2) of this section for the purpose of inspection within a reasonable time.

(4)(a) A person who violates this section commits a Class C misdemeanor.

(b) A person who violates this section and who has one prior conviction under this section that was entered within the last 10 years commits a Class B misdemeanor.

(c) A person who violates this section and who has two or more prior convictions under this section that were entered within the last 10 years commits a Class A misdemeanor.

SECTION 4. (1) Sections 2 and 3 of this 2003 Act do not apply to a person who:

(a) Sells or exchanges new and unused property that was not produced or manufactured within the last five years as indicated by the style of the packaging or of the material itself;

(b) Sells by sample, catalog or brochure for future delivery; or

(c) Makes a sales presentation to a consumer who received an individualized invitation to attend the sales presentation prior to the sales presentation from an owner or legal occupant of the premises where the sales presentation takes place.

(2) The recordkeeping requirements in section 3 of this 2003 Act do not apply to:

(a) A person who sells or exchanges new and unused property at an event that is organized and operated:

(A) For the exclusive benefit of a community chest, a fund, a foundation, an association or a corporation; and

(B) For religious, educational or charitable purposes.

(b) A person who sells or exchanges motor vehicles or trailers that are subject to state vehicle registration requirements.

(c) A person who sells or exchanges new and unused property at a gun show as defined in ORS 166.432.

(d) A person who sells or exchanges new and unused property at a livestock auction market as defined in ORS 599.205.

SECTION 5. This 2003 Act applies to all new and unused property sold, exchanged, purchased or acquired at an unused property market on or after the effective date of this 2003 Act.

Approved by the Governor June 12, 2003

Filed in the office of Secretary of State June 12, 2003

Effective date January 1, 2004

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