72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 864
House Bill 2094
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Attorney General Hardy
Myers for the Department of Justice)
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.
Requires tobacco product manufacturers to report certain
information to Attorney General. Requires Attorney General to
develop and maintain directory of information reported. Prohibits
stamping, selling, offering for sale or possessing for sale
cigarettes of tobacco product manufacturer or brand family not
listed in directory. Establishes civil and criminal penalties for
various acts or omissions.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to enforcement of tobacco Master Settlement Agreement
between State of Oregon and tobacco product manufacturers;
creating new provisions; amending ORS 323.130 and 646.608; and
declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The Legislative Assembly finds that violations
of ORS 293.530 to 293.535 threaten the integrity of the tobacco
Master Settlement Agreement, the fiscal soundness of the state
and the public health. The Legislative Assembly finds that
enacting procedural enhancements will aid the enforcement of ORS
293.530 to 293.535 and thereby safeguard the integrity of the
Master Settlement Agreement, the fiscal soundness of the state
and the public health. The provisions of sections 1 to 14 of this
2003 Act are not intended to and may not be interpreted to amend
ORS 293.530 to 293.535. + }
SECTION 2. { + As used in sections 1 to 14 of this 2003 Act:
(1) 'Brand family' means:
(a) All styles of cigarettes sold under the same trademark and
differentiated from one another by means of additional modifiers
or descriptors, including, but not limited to, ' menthol,'
'lights,' 'kings' and '100s'; and
(b) All uses of a brand name, alone or in conjunction with any
other word, trademark, logo, symbol, motto, selling message,
recognizable pattern of colors or other indicia of product
identification that are identical to, similar to or identifiable
with a previously known brand of cigarettes.
(2) 'Cigarette' has the meaning given that term in ORS 293.533.
(3) 'Distributor' means a person who is licensed under ORS
323.105 and any other person who is a distributor for the
purposes of ORS 323.005 to 323.482.
(4) 'Master Settlement Agreement' has the meaning given that
term in ORS 293.533.
(5) 'Nonparticipating manufacturer' means any tobacco product
manufacturer that is not a participating manufacturer.
(6) 'Participating manufacturer' has the meaning given that
term in section II(jj) of the Master Settlement Agreement.
(7) 'Qualified escrow fund' has the meaning given that term in
ORS 293.533.
(8) 'Tobacco product manufacturer' has the meaning given that
term in ORS 293.533.
(9) 'Units sold' has the meaning given that term in ORS
293.533. + }
SECTION 3. { + (1) Every tobacco product manufacturer whose
cigarettes are sold in this state whether directly or through a
distributor, retailer or similar intermediary shall execute and
deliver a certification to the Attorney General certifying that
as of the date of the certification, the tobacco product
manufacturer is either:
(a) A participating manufacturer; or
(b) In full compliance with ORS 293.530 to 293.535 and with
rules adopted under section 9 of this 2003 Act.
(2) The certification required by subsection (1) of this
section shall be on a form prescribed by the Attorney General and
shall be submitted no later than April 30 each year.
(3) A participating manufacturer shall include in the
certification required by subsection (1) of this section a list
of its brand families. The participating manufacturer shall
update the list at least 30 days prior to any addition or
modification to its brand families by executing and delivering a
supplemental certification to the Attorney General.
(4) A participating manufacturer may not include a brand family
in the list required by subsection (3) of this section unless the
participating manufacturer affirms that the cigarettes in the
brand family are to be considered the participating
manufacturer's cigarettes for purposes of calculating the
participating manufacturer's payments under the Master Settlement
Agreement for the relevant year, in the volume and shares
determined under the Master Settlement Agreement. This subsection
does not limit or otherwise affect the right of the state to
maintain that cigarettes in a brand family are those of a
different tobacco product manufacturer for purposes of
calculating payments under the Master Settlement Agreement or for
purposes of ORS 293.530 to 293.535.
(5) A nonparticipating manufacturer shall include in the
certification required by subsection (1) of this section a
complete list of:
(a) Its brand families and the number of units of each brand
family that were sold in the state during the preceding calendar
year;
(b) All of its brand families that have been sold in the state
at any time during the current calendar year;
(c) Any brand family sold in the state by the manufacturer
during the preceding calendar year that is no longer being sold
in the state by the manufacturer as of the date of the
certification, which may be indicated on the list described in
paragraph (b) of this subsection by an asterisk; and
(d) The name and address of any other tobacco product
manufacturer that manufactured a brand family described in
paragraph (c) of this subsection in the preceding calendar year.
(6) A nonparticipating manufacturer shall update the list
required by subsection (5) of this section at least 30 days prior
to any addition or modification to its brand families by
executing and delivering a supplemental certification to the
Attorney General.
(7) A nonparticipating manufacturer may not include a brand
family in the list required by subsection (5) of this section
unless the nonparticipating manufacturer affirms that the
cigarettes in the brand family are to be considered the
nonparticipating manufacturer's cigarettes for purposes of ORS
293.530 to 293.535. This subsection does not limit or otherwise
affect the right of the state to maintain that cigarettes in a
brand family are those of a different tobacco product
manufacturer for purposes of calculating payments under the
Master Settlement Agreement or for purposes of ORS 293.530 to
293.535.
SECTION 4. At the time of the certification required by section
3 (1) of this 2003 Act, a nonparticipating manufacturer shall
further certify:
(1) That the nonparticipating manufacturer is registered to do
business in the state or has appointed a resident agent for
service of process and provided notice of the appointment as
required by section 7 of this 2003 Act.
(2) That the nonparticipating manufacturer has:
(a) Established and continues to maintain a qualified escrow
fund; and
(b) Executed a qualified escrow agreement that has been
reviewed and approved by the Attorney General and that governs
the qualified escrow fund.
(3) That the nonparticipating manufacturer is in full
compliance with ORS 293.530 to 293.535 and with rules adopted
under section 9 of this 2003 Act.
(4)(a) The name, address and telephone number of the financial
institution where the nonparticipating manufacturer has
established the qualified escrow fund required by ORS 293.535;
(b) The account number of the qualified escrow fund and
subaccount number for the State of Oregon;
(c) The amount the nonparticipating manufacturer placed in the
qualified escrow fund for cigarettes sold in Oregon during the
preceding calendar year, the amount and date of each deposit and
evidence or verification as may be deemed necessary by the
Attorney General to confirm the amounts and dates; and
(d) The amounts and dates of any withdrawal of funds the
nonparticipating manufacturer made at any time from the qualified
escrow fund or from any other qualified escrow fund into which
the nonparticipating manufacturer ever made escrow payments
pursuant to ORS 293.535. + }
SECTION 5. { + A tobacco product manufacturer that certifies
to the Attorney General as required by section 3 or 4 of this
2003 Act shall retain all invoices and documentation of sales and
other information relied upon for the certification for a period
of five years. + }
SECTION 6. { + (1) The Attorney General shall develop and make
available for public inspection a directory listing all tobacco
product manufacturers that have provided current and accurate
certifications conforming to the requirements of sections 3 and 4
of this 2003 Act and all brand families that are listed in the
certifications.
(2) The Attorney General may not include or retain in the
directory the name or brand families of any nonparticipating
manufacturer that fails to provide the required certification or
whose certification the Attorney General determines is not in
compliance with sections 3 and 4 of this 2003 Act, unless the
Attorney General has determined that the violation has been cured
to the satisfaction of the Attorney General.
(3) The Attorney General may not include or retain in the
directory a tobacco product manufacturer or a brand family if the
Attorney General concludes that:
(a) Escrow payments required from the nonparticipating
manufacturer pursuant to ORS 293.535 for any period for any brand
family, whether listed or not listed by the nonparticipating
manufacturer, have not been fully paid into a qualified escrow
fund governed by a qualified escrow agreement that has been
approved by the Attorney General; or
(b) Outstanding final judgments, including interest thereon,
for violation of ORS 293.535 have not been fully satisfied for
the brand family or the tobacco product manufacturer.
(4) The Attorney General may take reasonable steps to update
the directory in order to correct mistakes and to add or remove a
tobacco product manufacturer or a brand family to keep the
directory in conformity with the requirements of this
section. + }
SECTION 7. { + (1)(a) Any nonresident or foreign
nonparticipating manufacturer that has not registered to do
business in this state as a foreign corporation or business
entity shall, as a condition precedent to having its brand
families listed or retained in the directory developed under
section 6 of this 2003 Act, appoint and continuously engage the
services of a resident agent in this state. The agent shall act
as agent for service of process on whom all process in any action
or proceeding against the nonparticipating manufacturer
concerning or arising out of the enforcement of this section or
ORS 293.530 to 293.535 or section 3, 4, 5, 8 or 11 of this 2003
Act, or rules adopted under section 9 of this 2003 Act, may be
served in any manner authorized by law. Service on the agent
constitutes legal and valid service of process on the
nonparticipating manufacturer.
(b) The nonparticipating manufacturer shall provide the name,
address, telephone number and proof of the appointment and
availability of the agent to, and to the satisfaction of, the
Attorney General.
(2) The nonparticipating manufacturer shall provide notice to
the Attorney General at least 30 calendar days prior to
termination of the authority of an agent and shall provide proof
to the satisfaction of the Attorney General of the appointment of
a new agent at least five calendar days prior to the termination
of an existing agent appointment. If an agent terminates an
agency appointment, the nonparticipating manufacturer shall
notify the Attorney General of the termination within five
calendar days and shall include proof to the satisfaction of the
Attorney General of the appointment of a new agent.
(3) A nonparticipating manufacturer whose products are sold in
this state who has not appointed or designated an agent as
required by this section shall be deemed to have appointed the
Secretary of State as the agent and may be proceeded against in
courts of this state by service of process upon the Secretary of
State. However, the appointment of the Secretary of State as the
agent does not satisfy the condition precedent to having brand
families of the nonparticipating manufacturer listed or retained
in the directory. + }
SECTION 8. { + (1) Not later than 20 days after the end of
each calendar quarter, and more frequently if so directed by the
Attorney General, a distributor who affixes stamps to cigarette
packages in accordance with the provisions of ORS 323.005 to
323.482 shall report such information as the Attorney General
requires to facilitate compliance by tobacco product
manufacturers with this section and section 3, 4, 5, 7 and 11 of
this 2003 Act, and with rules adopted under section 9 of this
2003 Act. The information shall include, but need not be limited
to, a list by brand family of the total number of cigarettes or,
in the case of roll-your-own tobacco, the equivalent stick count
for which the distributor affixed stamps during the previous
calendar quarter.
(2) A distributor shall maintain for a period of five years all
invoices and documentation of sales of cigarettes manufactured by
nonparticipating manufacturers and any other information relied
upon in reporting to the Attorney General under subsection (1) of
this section. The distributor shall make the invoices and other
documentation available to the Attorney General upon request.
(3) A distributor shall provide the Attorney General with an
electronic mail address so that the Attorney General may notify
the distributor of the information required under subsections (1)
and (6) of this section.
(4) The Attorney General and the Department of Revenue may
share with each other information received under this section and
sections 3, 4 and 14 of this 2003 Act and may share such
information with federal, state or local agencies for purposes of
enforcement of this section and ORS 293.530 to 293.535 and
sections 3, 4, 5, 7 and 11 of this 2003 Act, rules adopted under
section 9 of this 2003 Act or corresponding laws of other states.
(5) The Attorney General may at any time require a
nonparticipating manufacturer to produce proof from the financial
institution in which the nonparticipating manufacturer has
established a qualified escrow fund for the purpose of compliance
with ORS 293.535 of the amount of moneys in the fund being held
on behalf of the state, the amounts and dates of deposits and the
amounts and dates of all withdrawals from the fund.
(6) The Attorney General may require a distributor or a tobacco
product manufacturer to submit any additional information,
including, but not limited to, samples of the packaging and
labeling of each brand family to enable the Attorney General to
determine whether a tobacco product manufacturer is in compliance
with this section and sections 3, 4, 5, 7 and 11 of this 2003 Act
and with rules adopted under section 9 of this 2003 Act. + }
SECTION 9. { + To promote compliance with the provisions of
sections 3, 4, 5, 7, 8 and 11 of this 2003 Act, the Attorney
General may adopt rules requiring a nonparticipating manufacturer
to make the escrow deposits required by ORS 293.535 in quarterly
installments during the year in which the sales covered by the
deposits are made. The Attorney General may require a
nonparticipating manufacturer to produce information sufficient
to enable the Attorney General to determine the adequacy of the
amount of the installment deposit. + }
SECTION 10. { + (1) A determination by the Attorney General to
omit or remove from the directory developed under section 6 of
this 2003 Act a brand family or tobacco product manufacturer is
subject to review in the manner prescribed by ORS 183.484 for
judicial review of orders in other than contested cases.
(2) The Attorney General may adopt rules necessary to effect
the purposes of sections 1 to 14 of this 2003 Act.
(3) In any action brought by the state to enforce section 3, 4,
5, 7, 8 or 11 of this 2003 Act, or any rule adopted under section
9 of this 2003 Act, the state may recover the costs of
investigation, expert witness fees, costs of the action and
reasonable attorney fees.
(4) If a court determines that a person has violated any
provision of section 3, 4, 5, 7, 8 or 11 of this 2003 Act, or any
rule adopted under section 9 of this 2003 Act, the court shall
order any profits, gain, gross receipts or other benefit from the
violation to be disgorged and paid to the General Fund.
(5) Unless otherwise expressly provided, the remedies or
penalties provided by this section and sections 11 and 12 of this
2003 Act are cumulative to each other and to the remedies or
penalties available under all other laws of this state. + }
SECTION 11. { + (1) A person may not:
(a) Affix a stamp to a package or other container of cigarettes
of a tobacco product manufacturer or brand family that is not
included in the directory developed under section 6 of this 2003
Act; or
(b) Sell, offer for sale or possess for sale in this state
cigarettes of a tobacco product manufacturer or brand family that
is not included in the directory developed under section 6 of
this 2003 Act.
(2) A person who sells, offers for sale, distributes, acquires,
holds, owns, possesses, transports, imports or causes to be
imported cigarettes that the person knows or should know are
intended for sale or distribution in violation of subsection
(1)(b) of this section commits a Class ___ misdemeanor. + }
SECTION 12. { + (1) Upon a determination that a distributor
has violated section 11 of this 2003 Act, the Department of
Revenue may revoke or suspend the license of the distributor in
the manner provided by ORS 323.140. Each stamp affixed and each
offer to sell cigarettes in violation of section 11 of this 2003
Act constitutes a separate violation.
(2) Upon a determination that a person has violated section 11
(1)(b) of this 2003 Act, the Department of Revenue may impose a
civil penalty in an amount not to exceed the greater of $5,000 or
500 percent of the retail value of the cigarettes sold, offered
for sale or possessed for sale. The penalty shall be imposed in
the manner provided by ORS 183.090.
(3) Any cigarettes that have been sold, offered for sale or
possessed for sale in this state in violation of section 11
(1)(b) of this 2003 Act shall be deemed contraband, regardless of
whether the violation was knowing, and the cigarettes shall be
subject to seizure. Cigarettes seized under this subsection shall
be destroyed.
(4) The Attorney General may seek an injunction to restrain a
threatened or actual violation of section 8 (1) or (6) or 11 of
this 2003 Act by a distributor and to compel the distributor to
comply with those sections. In any action brought pursuant to
this subsection, the state may recover the costs of
investigation, the costs of the action and reasonable attorney
fees.
(5) A person who violates section 11 (1) of this 2003 Act
engages in an unlawful practice in violation of ORS 646.608. + }
SECTION 13. { + Section 14 of this 2003 Act is added to and
made a part of ORS 323.005 to 323.482. + }
SECTION 14. { + A person who files an application for a
distributor's license under ORS 323.105 shall include with the
application a written statement certifying that the person will
comply with the provisions of sections 8 and 11 of this 2003
Act. + }
SECTION 15. ORS 323.130 is amended to read:
323.130. Upon receipt of a completed application { + , the
statement required by section 14 of this 2003 Act + } and such
bonds or other security as may be required by the Department of
Revenue under ORS 323.005 to 323.482, the department shall issue
to the applicant a license as a distributor. A separate license
shall be issued for each place of business of the distributor
within the state. A license is valid only for engaging in
business as a distributor at the place designated thereon, and it
shall at all times be conspicuously displayed at the place for
which issued. The license is not transferable and is valid until
canceled, suspended or revoked.
SECTION 16. 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) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(aa) Violates ORS 646.850 (1).
(bb) Violates any requirement of ORS 646.661 to 646.686.
(cc) Violates the provisions of ORS 128.801 to 128.898.
(dd) Violates ORS 646.883 or 646.885.
(ee) Violates any provision of ORS 646.195.
(ff) Violates ORS 646.569.
(gg) Violates the provisions of ORS 646.859.
(hh) Violates ORS 759.290.
(ii) Violates ORS 646.872.
(jj) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(kk) Violates ORS 646.563.
(LL) Violates ORS 759.690 or any rule adopted pursuant thereto.
(mm) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(nn) Violates ORS 646.892 or 646.894.
(oo) Violates any provision of ORS 646.249 to 646.259.
(pp) Violates ORS 646.384.
(qq) Violates ORS 646.871.
(rr) Violates ORS 822.046.
(ss) Violates ORS 128.001.
(tt) Violates ORS 646.649 (2) to (4).
(uu) Violates ORS 646.877 (2) to (5).
(vv) Violates ORS 87.686.
(ww) Violates ORS 646.651.
(xx) Violates ORS 646.879.
(yy) Violates ORS 646.402 or any rule adopted under ORS 646.402
or 646.404.
{ + (zz) Violates section 11 (1) of this 2003 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) 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 17. ORS 646.608, as amended by section 13, chapter 924,
Oregon Laws 2001, 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 646.850 (1).
(cc) Violates any requirement of ORS 646.661 to 646.686.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates any provision of ORS 646.195.
(gg) Violates ORS 646.569.
(hh) Violates the provisions of ORS 646.859.
(ii) Violates ORS 759.290.
(jj) Violates ORS 646.872.
(kk) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(LL) Violates ORS 646.563.
(mm) Violates ORS 759.690 or any rule adopted pursuant thereto.
(nn) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(oo) Violates ORS 646.892 or 646.894.
(pp) Violates any provision of ORS 646.249 to 646.259.
(qq) Violates ORS 646.384.
(rr) Violates ORS 646.871.
(ss) Violates ORS 822.046.
(tt) Violates ORS 128.001.
(uu) Violates ORS 646.649 (2) to (4).
(vv) Violates ORS 646.877 (2) to (5).
(ww) Violates ORS 87.686.
(xx) Violates ORS 646.651.
(yy) Violates ORS 646.879.
(zz) Violates ORS 646.402 or any rule adopted under ORS 646.402
or 646.404.
{ + (aaa) Violates section 11 (1) of this 2003 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) 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 18. { + (1) A distributor required to report
information to the Attorney General under section 8 (1) of this
2003 Act shall make the initial report within 30 days after the
effective date of this 2003 Act. The information shall cover the
last calendar quarter that ends on or before the effective date
of this 2003 Act.
(2) A tobacco product manufacturer shall deliver the
certifications required by sections 3 and 4 of this 2003 Act to
the Attorney General within 45 days after the effective date of
this 2003 Act.
(3) The Attorney General shall publish or otherwise make
available the directory developed under section 6 of this 2003
Act within 90 days after the effective date of this 2003 Act. + }
SECTION 19. { + This 2003 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2003 Act takes effect on
its passage. + }
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