74th OREGON LEGISLATIVE ASSEMBLY--2008 Special 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 78
 
                           A-Engrossed
 
                         House Bill 3631
                 Ordered by the House February 7
           Including House Amendments dated February 7
 
Sponsored by COMMITTEE ON ELECTIONS, ETHICS AND RULES (at the
  request of House Interim Committee on Consumer Protection)
 
 
                             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.
 
  Prohibits retailer from selling or offering for sale, leasing,
subletting or otherwise distributing children's product subject
to recall notice or warning issued by United States Consumer
Product Safety Commission { + , + }   { - or - }  subject to
warning issued by children's product manufacturer or   { - agency
of this state - }  { + subject to rule or declaration that
children's product is banned hazardous substance + }. Requires
retailer to subscribe to or arrange to receive recall notices and
warnings issued for children's products and to dispose of
children's products identified in recall notice or warning in
strict compliance with instructions.
  Directs Attorney General to assist retailers in obtaining
information necessary to subscribe to or receive recall notices
related to children's products.
    { - Provides that in enforcement actions retailers are
presumed to have actual or constructive knowledge of recall
notices and warnings. - }  Authorizes enforcement of violation as
unlawful trade practice.
  Declares emergency, effective on passage.
 
                        A BILL FOR AN ACT
Relating to children's products; creating new provisions;
  amending ORS 646.608; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + As used in sections 1 to 3 of this 2008 Act:
  (1)(a) 'Children's product' means a consumer product that is
designed or intended:
  (A) For the care of or use by a child under 12 years of age; or
  (B) To come into contact with a child under 12 years of age at
the time the product is used.
  (b) 'Children's product' does not include:
  (A) A medication, drug, food or other product that is intended
to be ingested; or
  (B) A crib, as defined in ORS 646A.504.
  (2) 'Retailer' means a person that, in the ordinary course of
the person's business, sells or offers for sale, leases, sublets
 
or otherwise distributes a children's product to consumers in
this state. + }
  SECTION 2.  { + (1) A retailer may not sell or offer for sale,
lease, sublet or otherwise distribute a children's product to
consumers in this state if the children's product is:
  (a) Subject to a recall notice issued by or in cooperation with
the United States Consumer Product Safety Commission or another
federal agency;
  (b) The subject of a warning issued by the children's product
manufacturer, the Consumer Product Safety Commission or another
federal agency that the intended use of the children's product
constitutes a health or safety hazard; or
  (c) Subject to a declaration by the Director of Human Services
under ORS 453.055 or under rules adopted by the Department of
Human Services that the children's product is a banned hazardous
substance.
  (2) A retailer shall subscribe to or arrange to receive recall
notices and warnings issued by the Consumer Product Safety
Commission and warnings issued by manufacturers from which the
retailer receives children's products.
  (3) A retailer shall dispose of a children's product identified
in a recall notice or warning issued by or in cooperation with
the Consumer Product Safety Commission or another federal agency
in strict compliance with disposal instructions included with or
related to the recall notice or warning.
  (4) A retailer shall comply strictly with all return, repair,
retrofitting, labeling or remediation instructions issued with or
related to a warning or finding issued by the Consumer Product
Safety Commission or another federal agency, an agency of this
state or the children's product manufacturer. + }
  SECTION 3.  { + The Attorney General shall assist retailers in
obtaining information the retailers may need to subscribe to or
arrange to receive recall notices issued by the United States
Consumer Product Safety Commission for children's products. The
assistance shall include, but is not limited to, providing links
from the Attorney General's website to a website maintained by or
in cooperation with the Consumer Product Safety Commission for
the purpose of disseminating product recall notices. + }
  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
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 any provision of ORS 646A.020.
  (gg) Violates ORS 646.569.
  (hh) Violates the provisions of ORS 646A.142.
  (ii) Violates ORS 646A.360.
  (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 646A.210 or 646A.214.
  (oo) Violates any provision of ORS 646A.124 to 646A.134.
  (pp) Violates ORS 646A.254.
  (qq) Violates ORS 646A.095.
  (rr) Violates ORS 822.046.
  (ss) Violates ORS 128.001.
  (tt) Violates ORS 646.649 (2) to (4).
  (uu) Violates ORS 646A.090 (2) to (4).
  (vv) Violates ORS 87.686.
  (ww) Violates ORS 646.651.
  (xx) Violates ORS 646A.362.
  (yy) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
  (zz) Violates ORS 180.440 (1).
  (aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
  (bbb) Violates ORS 87.007 (2) or (3).
  (ccc) Violates ORS 92.405 (1), (2) or (3).
  (ddd) Engages in an unlawful practice under ORS 646.648.
  (eee) Violates ORS 646A.365.
  (fff) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
  (ggg) Sells a gift card in violation of ORS 646A.276.
  (hhh) Violates ORS 646A.102, 646A.106 or 646A.108.
  (iii) Violates ORS 646A.430 to 646A.450.
   { +  (jjj) Violates section 2 of this 2008 Act. + }
  (2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
  (3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
  (4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
  (5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(zz)
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. ORS 646.608, as operative until July 1, 2008, 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 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 any provision of ORS 646A.020.
  (gg) Violates ORS 646.569.
  (hh) Violates the provisions of ORS 646A.142.
  (ii) Violates ORS 646A.360.
  (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 646A.210 or 646A.214.
  (oo) Violates any provision of ORS 646A.124 to 646A.134.
  (pp) Violates ORS 646A.254.
  (qq) Violates ORS 646A.095.
  (rr) Violates ORS 822.046.
  (ss) Violates ORS 128.001.
  (tt) Violates ORS 646.649 (2) to (4).
  (uu) Violates ORS 646A.090 (2) to (4).
  (vv) Violates ORS 87.686.
  (ww) Violates ORS 646.651.
  (xx) Violates ORS 646A.362.
  (yy) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
  (zz) Violates ORS 180.440 (1).
  (aaa) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
  (bbb) Violates ORS 87.007 (2) or (3).
  (ccc) Violates ORS 92.405 (1), (2) or (3).
  (ddd) Engages in an unlawful practice under ORS 646.648.
  (eee) Violates ORS 646A.365.
 
  (fff) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
  (ggg) Sells a gift card in violation of ORS 646A.276.
  (hhh) Violates ORS 646A.102, 646A.106 or 646A.108.
   { +  (iii) Violates section 2 of this 2008 Act. + }
  (2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
  (3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
  (4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
  (5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(zz)
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 6.  { + Sections 1 to 3 of this 2008 Act and the
amendments to ORS 646.608 by sections 4 and 5 of this 2008 Act
apply to a person that operates as a retailer on or after the
operative date of sections 1 to 3 of this 2008 Act and the
amendments to ORS 646.608 by sections 4 and 5 of this 2008
Act. + }
  SECTION 7.  { + Sections 1 to 3 and 6 of this 2008 Act and the
amendments to ORS 646.608 by sections 4 and 5 of this 2008 Act
become operative on May 1, 2008. + }
  SECTION 8.  { + This 2008 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2008 Act takes effect on its
passage. + }
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