75th OREGON LEGISLATIVE ASSEMBLY--2009 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 1879
B-Engrossed
House Bill 2672
Ordered by the House April 17
Including House Amendments dated April 14 and April 17
Sponsored by Representatives GELSER, HUNT
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.
Increases rate of tax on distribution of moist snuff. Requires
Department of Revenue to recompute rate of tax each biennium
beginning in 2019. { - Directs tobacco tax revenues to payment
of expenses related to provision of medical examinations to
children who are victims of suspected physical abuse and to pilot
program for shaken baby prevention. - } Requires manufacturers
of smokeless tobacco products to report certain information to
Attorney General. Requires Attorney General to develop and
maintain directory of information reported. Prohibits selling,
offering for sale or possessing for sale smokeless tobacco
products of manufacturers not listed in directory. Prohibits
distribution of free samples of smokeless tobacco products to
persons under 21 years of age or in areas accessible by persons
under 21 years of age. Establishes civil and criminal penalties
for various acts or omissions.
Continuously appropriates moneys deposited in Tobacco
Enforcement Fund pursuant to Act to Department of Justice for
enforcement.
Applies to smokeless tobacco products distributed on or after
January 1, 2010.
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to distribution of tobacco products; creating new
provisions; amending ORS 131.602, 166.715, 180.205, 323.500,
323.505, 323.520, 323.530, 323.706 and 646.608; appropriating
money; prescribing an effective date; and providing for revenue
raising that requires approval by a three-fifths majority.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 323.500 is amended to read:
323.500. As used in ORS 323.500 to 323.645, unless the context
otherwise requires:
(1) 'Business' means any trade, occupation, activity or
enterprise engaged in for the purpose of selling or distributing
tobacco products in this state.
(2) 'Cigar' means a roll for smoking that is of any size or
shape and that is made wholly or in part of tobacco, irrespective
of whether the tobacco is pure or flavored, adulterated or mixed
with any other ingredient, if the roll has a wrapper made wholly
or in greater part of tobacco and if 1,000 of these rolls
collectively weigh more than three pounds. 'Cigar' does not
include a cigarette, as defined in ORS 323.010.
(3) 'Consumer' means any person who purchases tobacco products
in this state for the person's use or consumption or for any
purpose other than for reselling the tobacco products to another
person.
(4) 'Contraband tobacco products' means tobacco products or
packages containing tobacco products:
(a) That do not comply with the requirements of ORS 323.500 to
323.645;
(b) That do not comply with the requirements of the tobacco
products tax laws of the federal government or of other states;
{ - or - }
(c) That bear trademarks that are counterfeit under ORS 647.135
or other state or federal trademark laws { - . - } { + ; or
(d) That have been sold, offered for sale or possessed for sale
in this state in violation of section 13 of this 2009 Act. + }
(5) 'Department' means the Department of Revenue.
(6) 'Distribute' means:
(a) Bringing, or causing to be brought, into this state from
without this state tobacco products for sale, storage, use or
consumption;
(b) Making, manufacturing or fabricating tobacco products in
this state for sale, storage, use or consumption in this state;
(c) Shipping or transporting tobacco products to retail dealers
in this state, to be sold, stored, used or consumed by those
retail dealers;
(d) Storing untaxed tobacco products in this state that are
intended to be for sale, use or consumption in this state;
(e) Selling untaxed tobacco products in this state; or
(f) As a consumer, being in possession of untaxed tobacco
products in this state.
(7) 'Distributor' means:
(a) Any person engaged in the business of selling tobacco
products in this state who brings, or causes to be brought, into
this state from without the state any tobacco products for sale;
(b) Any person who makes, manufactures or fabricates tobacco
products in this state for sale in this state;
(c) Any person engaged in the business of selling tobacco
products without this state who ships or transports tobacco
products to retail dealers in this state, to be sold by those
retail dealers;
(d) Any person, including a retail dealer, who sells untaxed
tobacco products in this state; or
(e) A consumer in possession of untaxed tobacco products in
this state.
(8) 'Manufacturer' means a person who manufactures tobacco
products for sale.
{ + (9) 'Moist snuff' means:
(a) Any finely cut, ground or powdered tobacco that is not
intended to be smoked or placed in a nasal cavity; or
(b) Any other product containing tobacco that is intended or
expected to be consumed without being combusted. + }
{ - (9) - } { + (10) + } 'Place of business' means any
place where tobacco products are sold or where tobacco products
are manufactured, stored or kept for the purpose of sale or
consumption, including any vessel, vehicle, airplane, train or
vending machine.
{ - (10) - } { + (11) + } 'Retail dealer' means any person
who is engaged in the business of selling or otherwise dispensing
tobacco products to consumers. The term also includes the
operators of or recipients of revenue from all places such as
smoke shops, cigar stores and vending machines, where tobacco
products are made or stored for ultimate sale to consumers.
{ - (11) - } { + (12) + } 'Sale' means any transfer,
exchange or barter, in any manner or by any means, for a
consideration, and includes and means all sales made by any
person. It includes a gift by a person engaged in the business of
selling tobacco products, for advertising, as a means of evading
the provisions of ORS 323.500 to 323.645, or for any other
purpose.
{ - (12) - } { + (13) + } 'Taxpayer' includes a distributor
or other person required to pay a tax imposed under ORS 323.500
to 323.645.
{ - (13) - } { + (14) + } 'Tobacco products' means cigars,
cheroots, stogies, periques, granulated, plug cut, crimp cut,
ready rubbed and other smoking tobacco, snuff, snuff flour,
{ + moist snuff, + } cavendish, plug and twist tobacco, fine-cut
and other chewing tobaccos, shorts, refuse scraps, clippings,
cuttings and sweepings of tobacco and other kinds and forms of
tobacco, prepared in such manner as to be suitable for chewing or
smoking in a pipe or otherwise, or both for chewing and smoking,
but shall not include cigarettes as defined in ORS 323.010.
{ - (14) - } { + (15) + } 'Untaxed tobacco products' means
tobacco products for which the tax required under ORS 323.500 to
323.645 has not been paid.
{ - (15) - } { + (16) + } 'Wholesale sales price' means the
price paid for untaxed tobacco products to or on behalf of a
seller by a purchaser of the untaxed tobacco products.
SECTION 2. ORS 323.505 is amended to read:
323.505. (1) A tax is hereby imposed upon the distribution of
all tobacco products in this state. The tax imposed by this
section is intended to be a direct tax on the consumer, for which
payment upon distribution is required to achieve convenience and
facility in the collection and administration of the tax. The tax
shall be imposed on a distributor at the time the distributor
distributes tobacco products.
(2) The tax imposed under this section shall be imposed at the
rate of:
(a) Sixty-five percent of the wholesale sales price of cigars,
but not to exceed 50 cents per cigar; { - or - }
{ + (b) One dollar and seventy-eight cents per ounce based on
the net weight determined by the manufacturer, in the case of
moist snuff, except that the minimum tax under this paragraph is
$2.14 per retail container; or + }
{ - (b) - } { + (c) + } Sixty-five percent of the wholesale
sales price of all tobacco products that are not cigars { + or
moist snuff + }.
{ + (3) For reporting periods beginning on or after July 1,
2019, the rates of tax applicable to moist snuff under subsection
(2)(b) of this section shall be adjusted for each biennium
according to the cost-of-living adjustment for the calendar year.
The Department of Revenue shall recompute the rates for each
biennium by adding to the rates in subsection (2)(b) of this
section the product obtained by multiplying the rates in
subsection (2)(b) of this section by a factor that is equal to
0.25 multiplied by the percentage (if any) by which the monthly
averaged U.S. City Average Consumer Price Index for the 12
consecutive months ending August 31 of the prior calendar year
exceeds the monthly averaged U.S. City Average Consumer Price
Index for the 12 consecutive months ending August 31, 2017. + }
{ - (3) - } { + (4) + } If the tax imposed under this
section does not equal an amount calculable to a whole cent, the
tax shall be equal to the next higher whole cent. However, the
amount remitted to the Department of Revenue by the taxpayer for
each quarter shall be equal only to 98.5 percent of the total
taxes due and payable by the taxpayer for the quarter.
{ - (4) - } { + (5) + } No tobacco product shall be subject
to the tax if the base product or other intermediate form thereof
has previously been taxed under this section.
{ + NOTE: + } Sections 3 and 4 were deleted by amendment.
Subsequent sections were not renumbered.
SECTION 5. { + Sections 6 to 16 of this 2009 Act are added to
and made a part of ORS chapter 180. + }
SECTION 6. { + The Legislative Assembly finds that violations
of sections 18 to 20 of this 2009 Act threaten the integrity of
the Smokeless 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 sections 18 to 20 of this 2009 Act and thereby
safeguard the integrity of the Smokeless Tobacco Master
Settlement Agreement, the fiscal soundness of the state and the
public health. + }
SECTION 7. { + As used in sections 6 to 16 of this 2009 Act:
(1) 'Distributor' means a person who is licensed under ORS
323.520 and any other person who is a distributor for the
purposes of ORS 323.500 to 323.645.
(2) 'Nonparticipating manufacturer' means any tobacco product
manufacturer that is not a participating manufacturer.
(3) 'Participating manufacturer' has the meaning given that
term in section II(ee) of the Smokeless Tobacco Master Settlement
Agreement.
(4) 'Qualified escrow fund' has the meaning given that term in
section 18 of this 2009 Act.
(5) 'Smokeless Tobacco Master Settlement Agreement' has the
meaning given that term in section 18 of this 2009 Act.
(6) 'Smokeless tobacco products' has the meaning given that
term in section 18 of this 2009 Act.
(7) 'Tobacco product manufacturer' has the meaning given that
term in section 18 of this 2009 Act.
(8) 'Units sold' has the meaning given that term in section 18
of this 2009 Act. + }
SECTION 8. { + (1) Every tobacco product manufacturer whose
smokeless tobacco products 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 section 20 of this 2009 Act and
with rules adopted under sections 14 and 15 of this 2009 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. The form
shall permit the tobacco product manufacturer to indicate the
electronic mail address to which the Attorney General may send
notice of changes in the directory developed under section 10 of
this 2009 Act if the tobacco product manufacturer elects to
receive electronic mail notice. + }
SECTION 9. { + In the certification required by section 8 of
this 2009 Act, a nonparticipating manufacturer shall further
certify:
(1) That the nonparticipating manufacturer is registered to do
business in the State of Oregon or has appointed a resident agent
for service of process and provided notice of the appointment as
required by section 11 of this 2009 Act.
(2) That the nonparticipating manufacturer:
(a) Has established and continues to maintain a qualified
escrow fund; and
(b) Has executed a qualified escrow agreement that has been
reviewed and approved by the Attorney General and that governs
the qualified escrow fund. The Attorney General shall adopt rules
defining the form and content of a model escrow agreement. A
nonparticipating manufacturer that executes the model escrow
agreement is deemed to have satisfied the requirement that it use
a form of escrow agreement that has been reviewed and approved by
the Attorney General.
(3)(a) The name, address and telephone number of the financial
institution where the nonparticipating manufacturer has
established the qualified escrow fund required by section 20 of
this 2009 Act;
(b) The account number of the qualified escrow fund and any
subaccount number for the State of Oregon;
(c) The amount the nonparticipating manufacturer placed in the
qualified escrow fund for smokeless tobacco products 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 amount and date 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 section 20 of this 2009 Act. + }
SECTION 10. { + (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 8 and 9 of this 2009 Act.
(2) The Attorney General may not include or retain in the
directory the name of any nonparticipating manufacturer that
fails to provide the required certification or whose
certification the Attorney General determines is not in
compliance with sections 8 and 9 of this 2009 Act, unless the
Attorney General has determined that the violation has been cured
to the satisfaction of the Attorney General. The Attorney General
shall adopt rules defining the criteria by which the Attorney
General will exercise the discretion granted by this subsection.
(3) The Attorney General may not include or retain in the
directory a nonparticipating manufacturer if the Attorney General
concludes that:
(a) Any escrow payment required from the nonparticipating
manufacturer pursuant to section 20 of this 2009 Act for any
period has 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) Any outstanding final judgment against the nonparticipating
manufacturer, including interest thereon, for a violation of
section 20 of this 2009 Act has not been fully satisfied.
(4) The Attorney General shall update the directory in order to
correct mistakes and to add or remove a tobacco product
manufacturer to keep the directory in conformity with the
requirements of this section. The Attorney General shall update
the directory with new tobacco product manufacturers upon receipt
of an annual or supplemental certification listing new tobacco
product manufacturers if the Attorney General determines that the
annual or supplemental certification is in compliance with the
requirements of sections 8 and 9 of this 2009 Act. The Attorney
General shall make the determination about compliance within 45
days of receipt of the certification.
(5) The Attorney General shall:
(a) Create and maintain a list of persons, including but not
limited to tobacco product manufacturers and distributors, that
are interested in receiving electronic mail notifications of
changes in the directory developed under this section;
(b) Develop a registration form to be completed by persons
interested in receiving electronic mail notification of changes
in the directory developed under this section that are not
otherwise required by section 12 (3) of this 2009 Act or rules
adopted under sections 14 and 15 of this 2009 Act to submit their
electronic mail addresses to the Attorney General; and
(c) Immediately upon making any change in the directory
developed under this section, send electronic mail notices of the
change to all persons on the list created under this
subsection. + }
SECTION 11. { + (1)(a) Any nonresident or foreign
nonparticipating manufacturer that has not registered to do
business in the State of Oregon as a foreign corporation or
business entity shall, as a condition precedent to being listed
or retained in the directory developed under section 10 of this
2009 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 section 8,
9, 10, 12, 13 or 20 of this 2009 Act, or rules adopted under
sections 14 and 15 of this 2009 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 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 the
agent's appointment, the nonparticipating manufacturer shall
notify the Attorney General of the termination within five
calendar days and shall include proof to the Attorney General of
the appointment of a new agent.
(3) A nonparticipating manufacturer whose smokeless tobacco
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 the nonparticipating manufacturer being listed or
retained in the directory. + }
SECTION 12. { + (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 of smokeless tobacco products
subject to the requirements of ORS 323.500 to 323.645 shall
report such information as the Attorney General requires to
facilitate compliance by tobacco product manufacturers with this
section and sections 8, 9, 10, 11, 13 and 20 of this 2009 Act and
with rules adopted under sections 14 and 15 of this 2009 Act. The
information shall include, but need not be limited to, a list of
the total number of units sold of smokeless tobacco products for
which the distributor paid the tax due during the previous
calendar quarter.
(2) A distributor shall maintain for a period of five years all
invoices and documentation of sales of smokeless tobacco products
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 (7) of this section.
(4) The Attorney General and the Department of Revenue may
share with each other information received under this section and
sections 8 and 9 of this 2009 Act and ORS 323.520 and may share
such information with federal, state or local agencies for
purposes of enforcement of this section and sections 8, 9, 10,
11, 13 and 20 of this 2009 Act, rules adopted under sections 14
and 15 of this 2009 Act and 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 section 20 of this 2009 Act of the amount of moneys in the
fund, exclusive of interest, the amount and date of each deposit
and the amount and date of each withdrawal from the fund.
(6) The Attorney General shall, upon request of a
nonparticipating manufacturer whose compliance with escrow
requirements is at issue, provide the manufacturer with copies of
all documents upon which any proposed addition to the escrow is
based. Documents required to be provided under this subsection
include, but are not necessarily limited to, reports under this
section from distributors. The information provided to the
manufacturer under this subsection may not include information
about products of any tobacco product manufacturer other than the
one to whom the information is provided. The information may be
used only for the purpose of determining the appropriate amount
of escrow deposits.
(7) 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 smokeless tobacco product manufactured or
distributed, to enable the Attorney General to determine whether
a tobacco product manufacturer is in compliance with this section
and sections 8, 9, 10, 11, 13 and 20 of this 2009 Act and with
rules adopted under sections 14 and 15 of this 2009 Act. + }
SECTION 13. { + (1) A person may not:
(a) Sell, offer for sale or possess for sale in this state
smokeless tobacco products of a tobacco product manufacturer that
is not included in the directory developed under section 10 of
this 2009 Act;
(b) Sell, offer for sale or possess for sale in this state
smokeless tobacco products of a tobacco product manufacturer that
the person acquired at a time when the tobacco product
manufacturer was not included in the directory developed under
section 10 of this 2009 Act;
(c) Possess in this state for sale in another jurisdiction
smokeless tobacco products of a tobacco product manufacturer that
the person acquired at a time when the tobacco product
manufacturer was not included in the directory developed under
section 10 of this 2009 Act and was not in compliance with the
Smokeless Tobacco Master Settlement Agreement qualifying statute
in the other jurisdiction or with statutes that supplement the
qualifying statute in that jurisdiction; or
(d) Distribute, in this state, free samples of smokeless
tobacco products:
(A) To persons under 21 years of age; or
(B) In any area, unless access by persons under 21 years of age
to that area is prohibited.
(2) A person who sells, offers for sale, distributes, acquires,
holds, owns, possesses, transports, imports or causes to be
imported smokeless tobacco products that the person knows or
should know are intended for sale or distribution in violation of
subsection (1) of this section commits a Class A misdemeanor. + }
SECTION 14. { + (1) To promote compliance with the provisions
of sections 8, 9, 10, 11, 12 and 13 of this 2009 Act, the
Attorney General may adopt rules requiring a nonparticipating
manufacturer to make the escrow deposits required by section 20
of this 2009 Act 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.
(2) If the Attorney General adopts rules requiring a
nonparticipating manufacturer to make escrow deposits in
quarterly installments, the rules may also provide that a
nonparticipating manufacturer that has been in continuous
compliance for one year with sections 8, 9, 10, 11, 12, 13 and 20
of this 2009 Act may make escrow deposits required by section 20
of this 2009 Act in annual payments during the second and
subsequent years in which deposits are required. + }
SECTION 15. { + (1) A determination by the Attorney General to
omit or remove a tobacco product manufacturer from the directory
developed under section 10 of this 2009 Act 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 6 to 16 of this 2009 Act and ORS 323.520
(3).
(3) In any action brought by the state to enforce section 8, 9,
10, 11, 12, 13 or 20 of this 2009 Act, or any rule adopted under
this section or section 14 of this 2009 Act, the state may
recover the costs of investigation, expert witness fees, costs of
the action and reasonable attorney fees. Moneys recovered under
this subsection shall be deposited into the Tobacco Enforcement
Fund established under ORS 180.205.
(4) If a court determines that a person has violated any
provision of section 8, 9, 10, 11, 12, 13 or 20 of this 2009 Act,
or any rule adopted under this section or section 14 of this 2009
Act, the court shall order any profits, gain, gross receipts or
other benefit from the violation to be disgorged and paid to the
Tobacco Enforcement Fund established under ORS 180.205.
(5) Unless otherwise expressly provided, the remedies or
penalties provided by this section and sections 13 and 16 of this
2009 Act are cumulative to each other and to the remedies or
penalties available under all other laws of this state. + }
SECTION 16. { + (1) Upon a determination that a distributor
has violated section 13 of this 2009 Act, the Department of
Revenue may revoke or suspend the license of the distributor in
the manner provided by ORS 323.535. Each offer to sell smokeless
tobacco products in violation of section 13 of this 2009 Act
constitutes a separate violation.
(2) Upon a determination that a person applying for a license
under ORS 323.520 has violated section 13 of this 2009 Act at any
time within the five years preceding the application, the
department may refuse to issue the license. The department shall
provide opportunity for hearing and judicial review in the manner
provided in ORS 323.535.
(3)(a) Upon a determination that a person has violated section
13 (1)(b) or (c) of this 2009 Act, the department 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 smokeless tobacco products
sold, offered for sale or possessed for sale. Judicial review of
an order imposing a civil penalty shall be as provided in ORS
305.445 and 305.501.
(b) Upon a determination that a person has violated section 13
(1)(a) of this 2009 Act, the department may impose a civil
penalty in an amount not to exceed $5,000. Judicial review of an
order imposing a civil penalty shall be as provided in ORS
305.445 and 305.501.
(4) The Attorney General may seek an injunction to restrain a
threatened or actual violation of section 12 or 13 of this 2009
Act by a distributor and to compel the distributor to comply with
sections 12 and 13 of this 2009 Act. 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 13 (1) of this 2009 Act
engages in an unlawful practice in violation of ORS 646.608. + }
SECTION 17. { + Sections 18 to 20 of this 2009 Act are added
to and made a part of ORS chapter 323. + }
SECTION 18. { + As used in sections 18 to 20 of this 2009 Act:
(1) 'Adjusted for inflation' means increased in accordance with
the formula for inflation adjustment set forth in Exhibit F to
the Smokeless Tobacco Master Settlement Agreement.
(2) 'Affiliate' means a person who directly or indirectly owns
or controls, is owned or controlled by or is under common
ownership or control with another person. For purposes of
defining ' affiliate':
(a) 'Owns,' 'is owned' and 'ownership' mean ownership of an
equity interest, or the equivalent thereof, of 10 percent or
more; and
(b) 'Person' means an individual, partnership, committee,
association, corporation or any other organization or group of
persons.
(3) 'Qualified escrow fund' means an escrow arrangement with a
federally or state chartered financial institution having no
affiliation with any tobacco product manufacturer and having
assets of at least $1 billion, where such arrangement requires
that such financial institution hold the escrowed funds'
principal for the benefit of releasing parties and prohibits the
tobacco product manufacturer who is placing the funds into escrow
from using, accessing or directing the use of the escrowed funds'
principal except as consistent with section 20 (2)(b) of this
2009 Act.
(4) 'Released claims' has the meaning given that term in
section II(gg) of the Smokeless Tobacco Master Settlement
Agreement.
(5) 'Releasing parties' has the meaning given that term in
section II(ii) of the Smokeless Tobacco Master Settlement
Agreement.
(6) 'Smokeless Tobacco Master Settlement Agreement' means the
settlement agreement (and related documents) entered into on
November 23, 1998, by the State of Oregon and leading United
States tobacco product manufacturers.
(7) 'Smokeless tobacco products' means moist snuff, as defined
in ORS 323.500, or chewing tobacco, as defined in section 5702 of
the Internal Revenue Code.
(8)(a) 'Tobacco product manufacturer' means an entity that,
after the effective date of this 2009 Act, directly (and not
exclusively through any affiliate):
(A) Manufactures smokeless tobacco products anywhere that such
manufacturer intends to be sold in the United States, including
smokeless tobacco products intended to be sold in the United
States through an importer (except where such importer is an
Original Participating Manufacturer, as defined in section II(cc)
of the Smokeless Tobacco Master Settlement Agreement), that will
be responsible for the payments under the Smokeless Tobacco
Master Settlement Agreement with respect to such smokeless
tobacco products as a result of the provisions of section VI(b)
of the Smokeless Tobacco Master Settlement Agreement and that
pays the taxes specified in section II(w) of the Smokeless
Tobacco Master Settlement Agreement, and provided that the
manufacturer of such smokeless tobacco products does not market
or advertise such smokeless tobacco products in the United
States);
(B) Is the first purchaser anywhere for resale in the United
States of smokeless tobacco products manufactured anywhere that
the manufacturer does not intend to be sold in the United States;
or
(C) Becomes a successor of an entity described in subparagraph
(A) or (B) of this paragraph.
(b) 'Tobacco product manufacturer' does not include an
affiliate of a tobacco product manufacturer unless such affiliate
is itself a tobacco product manufacturer under paragraph (a) of
this subsection.
(9) 'Units sold' means the number of individual containers of
smokeless tobacco products sold in the State of Oregon by the
applicable tobacco product manufacturer (whether directly or
through a distributor, retailer or similar intermediary or
intermediaries) during the year in question, as measured by
excise taxes collected by the State of Oregon. The Department of
Revenue shall adopt such rules as are necessary to ascertain the
amount of state excise tax paid on the smokeless tobacco products
of such tobacco product manufacturer for each year. A unit
container shall contain 3.2 ounces of moist snuff, as defined in
ORS 323.500, or 3.0 ounces of chewing tobacco. + }
SECTION 19. { + (1) The use of smokeless tobacco products
presents serious public health concerns to the State of Oregon
and to the residents of the State of Oregon. The United States
Surgeon General has determined that use of smokeless tobacco
causes cancer, noncancerous oral conditions and other serious
diseases, and that there are hundreds of thousands of
tobacco-related deaths in the United States each year. These
diseases most often do not appear until many years after the
person in question begins using tobacco products.
(2) Use of smokeless tobacco products also presents serious
financial concerns for this state. Under certain health care
programs, the State of Oregon may have a legal obligation to
provide medical assistance to eligible persons for health
conditions associated with the use of smokeless tobacco, and
those persons may have a legal entitlement to receive such
medical assistance.
(3) Under those health care programs, the State of Oregon pays
millions of dollars each year to provide medical assistance for
persons for health conditions associated with the use of
smokeless tobacco products.
(4) It is the policy of the State of Oregon that financial
burdens imposed on this state by the use of smokeless tobacco be
borne by tobacco product manufacturers rather than by this state
to the extent that such manufacturers either determine to enter
into a settlement with the State of Oregon or are found culpable
by the courts.
(5) On November 23, 1998, leading United States tobacco product
manufacturers entered into a settlement agreement, titled the
'Smokeless Tobacco Master Settlement Agreement,' with the State
of Oregon. The Smokeless Tobacco Master Settlement Agreement
obligates those manufacturers, in return for a release of past,
present and certain future claims against them as described in
the Smokeless Tobacco Master Settlement Agreement:
(a) To pay substantial sums to the State of Oregon (tied in
part to their volume of sales);
(b) To fund a national foundation devoted to the interests of
public health; and
(c) To make substantial changes in their advertising and
marketing practices and corporate culture, with the intention of
reducing underage smoking.
(6) It would be contrary to the policy of the State of Oregon
if those tobacco product manufacturers who determine not to enter
into such a settlement could use a resulting cost advantage to
derive large, short-term profits in the years before liability
may arise without ensuring that this state will have an eventual
source of recovery from them if they are proven to have acted
culpably. It is thus in the interest of the State of Oregon to
require that such manufacturers establish a reserve fund to
guarantee a source of compensation and to prevent such
manufacturers from deriving large, short-term profits and then
becoming judgment-proof before liability may arise. + }
SECTION 20. { + (1) Any tobacco product manufacturer selling
smokeless tobacco products to consumers within the State of
Oregon (whether directly or through a distributor, retailer or
similar intermediary or intermediaries) after the effective date
of this 2009 Act shall do one of the following:
(a) Comply with the requirements imposed on Participating
Manufacturers that are set forth in sections III, V and VII of
the Smokeless Tobacco Master Settlement Agreement; or
(b) Place into a qualified escrow fund, by April 15 of the year
following the year in question, the amount of $0.40 per unit sold
for 2010 or such amount adjusted for inflation for each year
thereafter.
(2) A tobacco product manufacturer that places funds into
escrow pursuant to this section shall receive the interest or
other appreciation on such funds as earned. The funds themselves
shall be released from escrow only under the following
circumstances:
(a) To pay a judgment or settlement on any released claim
brought against such tobacco product manufacturer by the State of
Oregon or any releasing party located or residing in this state.
Funds shall be released from escrow under this paragraph in the
order in which they were placed into escrow and only to the
extent and at the time necessary to make payments required under
such judgment or settlement;
(b) To refund any excess amount owed to a tobacco product
manufacturer when the tobacco product manufacturer establishes
that the amount it was required to place into escrow on account
of units sold in Oregon in a particular year was greater than the
Smokeless Tobacco Master Settlement Agreement payments, as
determined pursuant to section IX(c) of that agreement after
final determination of all adjustments, that the manufacturer
would have been required to make on account of such units sold
had it been a Participating Manufacturer, as defined in section
II(ee) of the Smokeless Tobacco Master Settlement Agreement; or
(c) To refund funds to a tobacco product manufacturer 25 years
after the date on which they were placed in escrow, only if the
funds were not released from escrow under paragraph (a) or (b) of
this subsection.
(3) Each tobacco product manufacturer that elects to place
funds into escrow pursuant to this section shall annually certify
to the Attorney General that it is in compliance with this
section. The Attorney General may bring a civil action on behalf
of the State of Oregon against any tobacco product manufacturer
that fails to place into escrow the funds required under this
section. Any tobacco product manufacturer that fails in any year
to place into escrow the funds required under this section shall:
(a) Be required within 15 days to place such funds into escrow
as shall bring the manufacturer into compliance with this
section. The court, upon a finding of a violation of this
section, may impose a civil penalty to be paid to the General
Fund of this state in an amount not to exceed five percent of the
amount improperly withheld from escrow per day of the violation
and in a total amount not to exceed 100 percent of the original
amount improperly withheld from escrow;
(b) In the case of a knowing violation, be required within 15
days to place such funds into escrow as shall bring the
manufacturer into compliance with this section. The court, upon a
finding of a knowing violation of this section, may impose a
civil penalty to be paid to the General Fund of this state in an
amount not to exceed 15 percent of the amount improperly withheld
from escrow per day of the violation and in a total amount not to
exceed 300 percent of the original amount improperly withheld
from escrow; and
(c) In the case of a second knowing violation, be prohibited
from selling smokeless tobacco products to consumers within the
State of Oregon (whether directly or through a distributor,
retailer or similar intermediary or intermediaries) for a period
not to exceed two years. Each failure to make an annual deposit
required under this section shall constitute a separate
violation. + }
SECTION 21. ORS 323.520 is amended to read:
323.520. (1) Any person engaging or seeking to engage in the
sale of tobacco products as a distributor shall file an
application for a distributor's license with the Department of
Revenue. The application shall be on a form prescribed by the
department. A distributor shall apply for and obtain a license
for each place of business at which the distributor engages in
the business of distributing tobacco products. A fee may not be
charged for the license. For the purposes of this section, a
vending machine in and of itself is not a place of business.
(2) A person may not engage in the business of distributing
tobacco products in this state without a license.
{ + (3) A person filing an application under this section
shall include with the application a written statement certifying
that the person will comply with the provisions of sections 12
and 13 of this 2009 Act where applicable. + }
SECTION 22. ORS 323.530 is amended to read:
323.530. (1) Upon receipt of a completed application { + , the
statement required by ORS 323.520 (3) + } and any security
required by the Department of Revenue under ORS 323.500 to
323.645, the department shall issue a distributor's license to an
applicant. A separate license shall be issued for each place of
business of the distributor within the state. Each license issued
by the department shall include an identification number for the
license. 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.
(2) The department may not issue a license to an applicant if
the department determines or has reason to believe that the
applicant will not comply with the provisions of ORS chapter 323
or any other state or federal tobacco products tax law.
(3) Notwithstanding ORS 305.280, a decision by the department
not to issue a license to an applicant may be appealed by the
applicant to the magistrate division of the tax court within 30
days of the date of the decision of the department in the manner
prescribed in ORS 305.404 to 305.560.
(4) For purposes of this section, an application to renew a
distributor's license shall be considered the same as an
application for an initial distributor's license.
SECTION 23. ORS 323.706 is amended to read:
323.706. A person accepting a purchase order for a delivery
sale, prior to the first mailing, shipment or other delivery of
tobacco to a consumer, shall comply with:
(1) The age verification requirements set forth in ORS 323.709;
(2) The distributor license requirements set forth in ORS
323.712;
(3) The disclosure requirements set forth in ORS 323.715;
(4) The mailing or shipping requirements set forth in ORS
323.718;
(5) The reporting requirements set forth in ORS 323.721; and
(6) All other laws of this state applicable to sales of tobacco
that occur entirely within Oregon, including but not limited to
ORS 323.005 to 323.482, 323.500 to 323.645 and 323.806 { + and
section 20 of this 2009 Act + }.
SECTION 24. ORS 131.602 is amended to read:
131.602. The crimes to which ORS 131.550 (11)(b) applies are:
(1) Bribe giving, as defined in ORS 162.015.
(2) Bribe receiving, as defined in ORS 162.025.
(3) Public investment fraud, as defined in ORS 162.117.
(4) Bribing a witness, as defined in ORS 162.265.
(5) Bribe receiving by a witness, as defined in ORS 162.275.
(6) Simulating legal process, as defined in ORS 162.355.
(7) Official misconduct in the first degree, as defined in ORS
162.415.
(8) Custodial interference in the second degree, as defined in
ORS 163.245.
(9) Custodial interference in the first degree, as defined in
ORS 163.257.
(10) Buying or selling a person under 18 years of age, as
defined in ORS 163.537.
(11) Using a child in a display of sexually explicit conduct,
as defined in ORS 163.670.
(12) Encouraging child sexual abuse in the first degree, as
defined in ORS 163.684.
(13) Encouraging child sexual abuse in the second degree, as
defined in ORS 163.686.
(14) Encouraging child sexual abuse in the third degree, as
defined in ORS 163.687.
(15) Possession of materials depicting sexually explicit
conduct of a child in the first degree, as defined in ORS
163.688.
(16) Possession of materials depicting sexually explicit
conduct of a child in the second degree, as defined in ORS
163.689.
(17) Theft in the second degree, as defined in ORS 164.045.
(18) Theft in the first degree, as defined in ORS 164.055.
(19) Aggravated theft in the first degree, as defined in ORS
164.057.
(20) Theft by extortion, as defined in ORS 164.075.
(21) Theft by deception, as defined in ORS 164.085, if it is a
felony or a Class A misdemeanor.
(22) Theft by receiving, as defined in ORS 164.095, if it is a
felony or a Class A misdemeanor.
(23) Theft of services, as defined in ORS 164.125, if it is a
felony or a Class A misdemeanor.
(24) Unauthorized use of a vehicle, as defined in ORS 164.135.
(25) Mail theft or receipt of stolen mail, as defined in ORS
164.162.
(26) Laundering a monetary instrument, as defined in ORS
164.170.
(27) Engaging in a financial transaction in property derived
from unlawful activity, as defined in ORS 164.172.
(28) Burglary in the second degree, as defined in ORS 164.215.
(29) Burglary in the first degree, as defined in ORS 164.225.
(30) Possession of a burglary tool or theft device, as defined
in ORS 164.235.
(31) Unlawful entry into a motor vehicle, as defined in ORS
164.272.
(32) Arson in the second degree, as defined in ORS 164.315.
(33) Arson in the first degree, as defined in ORS 164.325.
(34) Computer crime, as defined in ORS 164.377.
(35) Robbery in the third degree, as defined in ORS 164.395.
(36) Robbery in the second degree, as defined in ORS 164.405.
(37) Robbery in the first degree, as defined in ORS 164.415.
(38) Unlawful labeling of a sound recording, as defined in ORS
164.868.
(39) Unlawful recording of a live performance, as defined in
ORS 164.869.
(40) Unlawful labeling of a videotape recording, as defined in
ORS 164.872.
(41) A violation of ORS 164.886.
(42) Endangering aircraft, as defined in ORS 164.885.
(43) Interference with agricultural operations, as defined in
ORS 164.887.
(44) Forgery in the second degree, as defined in ORS 165.007.
(45) Forgery in the first degree, as defined in ORS 165.013.
(46) Criminal possession of a forged instrument in the second
degree, as defined in ORS 165.017.
(47) Criminal possession of a forged instrument in the first
degree, as defined in ORS 165.022.
(48) Criminal possession of a forgery device, as defined in ORS
165.032.
(49) Criminal simulation, as defined in ORS 165.037.
(50) Fraudulently obtaining a signature, as defined in ORS
165.042.
(51) Fraudulent use of a credit card, as defined in ORS
165.055.
(52) Negotiating a bad check, as defined in ORS 165.065.
(53) Possessing a fraudulent communications device, as defined
in ORS 165.070.
(54) Unlawful factoring of a payment card transaction, as
defined in ORS 165.074.
(55) Falsifying business records, as defined in ORS 165.080.
(56) Sports bribery, as defined in ORS 165.085.
(57) Sports bribe receiving, as defined in ORS 165.090.
(58) Misapplication of entrusted property, as defined in ORS
165.095.
(59) Issuing a false financial statement, as defined in ORS
165.100.
(60) Obtaining execution of documents by deception, as defined
in ORS 165.102.
(61) A violation of ORS 165.543.
(62) Cellular counterfeiting in the third degree, as defined in
ORS 165.577.
(63) Cellular counterfeiting in the second degree, as defined
in ORS 165.579.
(64) Cellular counterfeiting in the first degree, as defined in
ORS 165.581.
(65) Identity theft, as defined in ORS 165.800.
(66) A violation of ORS 166.190.
(67) Unlawful use of a weapon, as defined in ORS 166.220.
(68) A violation of ORS 166.240.
(69) Unlawful possession of a firearm, as defined in ORS
166.250.
(70) A violation of ORS 166.270.
(71) Unlawful possession of a machine gun, short-barreled
rifle, short-barreled shotgun or firearms silencer, as defined in
ORS 166.272.
(72) A violation of ORS 166.275.
(73) Unlawful possession of armor piercing ammunition, as
defined in ORS 166.350.
(74) A violation of ORS 166.370.
(75) Unlawful possession of a destructive device, as defined in
ORS 166.382.
(76) Unlawful manufacture of a destructive device, as defined
in ORS 166.384.
(77) Possession of a hoax destructive device, as defined in ORS
166.385.
(78) A violation of ORS 166.410.
(79) Providing false information in connection with a transfer
of a firearm, as defined in ORS 166.416.
(80) Improperly transferring a firearm, as defined in ORS
166.418.
(81) Unlawfully purchasing a firearm, as defined in ORS
166.425.
(82) A violation of ORS 166.429.
(83) A violation of ORS 166.470.
(84) A violation of ORS 166.480.
(85) A violation of ORS 166.635.
(86) A violation of ORS 166.638.
(87) Unlawful paramilitary activity, as defined in ORS 166.660.
(88) A violation of ORS 166.720.
(89) Prostitution, as defined in ORS 167.007.
(90) Promoting prostitution, as defined in ORS 167.012.
(91) Compelling prostitution, as defined in ORS 167.017.
(92) Exhibiting an obscene performance to a minor, as defined
in ORS 167.075.
(93) Unlawful gambling in the second degree, as defined in ORS
167.122.
(94) Unlawful gambling in the first degree, as defined in ORS
167.127.
(95) Possession of gambling records in the second degree, as
defined in ORS 167.132.
(96) Possession of gambling records in the first degree, as
defined in ORS 167.137.
(97) Possession of a gambling device, as defined in ORS
167.147.
(98) Possession of a gray machine, as defined in ORS 167.164.
(99) Cheating, as defined in ORS 167.167.
(100) Tampering with drug records, as defined in ORS 167.212.
(101) A violation of ORS 167.262.
(102) Research and animal interference, as defined in ORS
167.312.
(103) Animal abuse in the first degree, as defined in ORS
167.320.
(104) Aggravated animal abuse in the first degree, as defined
in ORS 167.322.
(105) Animal neglect in the first degree, as defined in ORS
167.330.
(106) Interfering with an assistance, a search and rescue or a
therapy animal, as defined in ORS 167.352.
(107) Involvement in animal fighting, as defined in ORS
167.355.
(108) Dogfighting, as defined in ORS 167.365.
(109) Participation in dogfighting, as defined in ORS 167.370.
(110) Unauthorized use of a livestock animal, as defined in ORS
167.385.
(111) Interference with livestock production, as defined in ORS
167.388.
(112) A violation of ORS 167.390.
(113) A violation of ORS 471.410.
(114) Failure to report missing precursor substances, as
defined in ORS 475.955.
(115) Illegally selling drug equipment, as defined in ORS
475.960.
(116) Providing false information on a precursor substances
report, as defined in ORS 475.965.
(117) Unlawful delivery of an imitation controlled substance,
as defined in ORS 475.912.
(118) A violation of ORS 475.840, if it is a felony or a Class
A misdemeanor.
(119) A violation of ORS 475.914, if it is a felony or a Class
A misdemeanor.
(120) A violation of ORS 475.916.
(121) A violation of ORS 475.906, if it is a felony or a Class
A misdemeanor.
(122) A violation of ORS 475.904.
(123) Misuse of an identification card, as defined in ORS
807.430.
(124) Unlawful production of identification cards, licenses,
permits, forms or camera cards, as defined in ORS 807.500.
(125) Transfer of documents for the purposes of
misrepresentation, as defined in ORS 807.510.
(126) Using an invalid license, as defined in ORS 807.580.
(127) Permitting misuse of a license, as defined in ORS
807.590.
(128) Using another's license, as defined in ORS 807.600.
(129) Criminal driving while suspended or revoked, as defined
in ORS 811.182, when it is a felony.
(130) Driving while under the influence of intoxicants, as
defined in ORS 813.010, when it is a felony.
(131) Unlawful distribution of cigarettes, as defined in ORS
323.482.
(132) Unlawful distribution of tobacco products, as defined in
ORS 323.632.
(133) A violation of ORS 180.440 (2) { - . - } { + or
section 13 (2) of this 2009 Act. + }
(134) A violation described in ORS 475.846 to 475.894, if it is
a felony.
(135) Subjecting another person to involuntary servitude in the
first degree, as defined in ORS 163.264.
(136) Subjecting another person to involuntary servitude in the
second degree, as defined in ORS 163.263.
(137) Trafficking in persons, as defined in ORS 163.266.
(138) Furnishing sexually explicit material to a child, as
defined in ORS 167.054.
(139) Luring a minor, as defined in ORS 167.057.
(140) Online sexual corruption of a child in the second degree,
as defined in ORS 163.432.
(141) Online sexual corruption of a child in the first degree,
as defined in ORS 163.433.
(142) An attempt, conspiracy or solicitation to commit a crime
in subsections (1) to (141) of this section if the attempt,
conspiracy or solicitation is a felony or a Class A misdemeanor.
SECTION 25. ORS 166.715 is amended to read:
166.715. As used in ORS 166.715 to 166.735, unless the context
requires otherwise:
(1) 'Documentary material' means any book, paper, document,
writing, drawing, graph, chart, photograph, phonograph record,
magnetic tape, computer printout, other data compilation from
which information can be obtained or from which information can
be translated into usable form, or other tangible item.
(2) 'Enterprise' includes any individual, sole proprietorship,
partnership, corporation, business trust or other profit or
nonprofit legal entity, and includes any union, association or
group of individuals associated in fact although not a legal
entity, and both illicit and licit enterprises and governmental
and nongovernmental entities.
(3) 'Investigative agency' means the Department of Justice or
any district attorney.
(4) 'Pattern of racketeering activity' means engaging in at
least two incidents of racketeering activity that have the same
or similar intents, results, accomplices, victims or methods of
commission or otherwise are interrelated by distinguishing
characteristics, including a nexus to the same enterprise, and
are not isolated incidents, provided at least one of such
incidents occurred after November 1, 1981, and that the last of
such incidents occurred within five years after a prior incident
of racketeering activity. Notwithstanding ORS 131.505 to 131.525
or 419A.190 or any other provision of law providing that a
previous prosecution is a bar to a subsequent prosecution,
conduct that constitutes an incident of racketeering activity may
be used to establish a pattern of racketeering activity without
regard to whether the conduct previously has been the subject of
a criminal prosecution or conviction or a juvenile court
adjudication, unless the prosecution resulted in an acquittal or
the adjudication resulted in entry of an order finding the youth
not to be within the jurisdiction of the juvenile court.
(5) 'Person' means any individual or entity capable of holding
a legal or beneficial interest in real or personal property.
(6) 'Racketeering activity' includes conduct of a person
committed both before and after the person attains the age of 18
years, and means to commit, to attempt to commit, to conspire to
commit, or to solicit, coerce or intimidate another person to
commit:
(a) Any conduct that constitutes a crime, as defined in ORS
161.515, under any of the following provisions of the Oregon
Revised Statutes:
(A) ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995,
relating to securities;
(B) ORS 162.015, 162.025 and 162.065 to 162.085, relating to
bribery and perjury;
(C) ORS 162.235, 162.265 to 162.305, 162.325, 162.335, 162.355
and 162.365, relating to obstructing governmental administration;
(D) ORS 162.405 to 162.425, relating to abuse of public office;
(E) ORS 162.455, relating to interference with legislative
operation;
(F) ORS 163.095 to 163.115, 163.118, 163.125 and 163.145,
relating to criminal homicide;
(G) ORS 163.160 to 163.205, relating to assault and related
offenses;
(H) ORS 163.225 and 163.235, relating to kidnapping;
(I) ORS 163.275, relating to coercion;
(J) ORS 163.670 to 163.693, relating to sexual conduct of
children;
(K) ORS 164.015, 164.043, 164.045, 164.055, 164.057, 164.075 to
164.095, 164.098, 164.125, 164.135, 164.140, 164.215, 164.225 and
164.245 to 164.270, relating to theft, burglary, criminal
trespass and related offenses;
(L) ORS 164.315 to 164.335, relating to arson and related
offenses;
(M) ORS 164.345 to 164.365, relating to criminal mischief;
(N) ORS 164.395 to 164.415, relating to robbery;
(O) ORS 164.865, 164.875 and 164.868 to 164.872, relating to
unlawful recording or labeling of a recording;
(P) ORS 165.007 to 165.022, 165.032 to 165.042 and 165.055 to
165.070, relating to forgery and related offenses;
(Q) ORS 165.080 to 165.109, relating to business and commercial
offenses;
(R) ORS 165.485 to 165.515, 165.540 and 165.555, relating to
communication crimes;
(S) ORS 166.180, 166.190, 166.220, 166.250, 166.270, 166.275,
166.410, 166.450 and 166.470, relating to firearms and other
weapons;
(T) ORS 164.377 (2) to (4), as punishable under ORS 164.377
(5)(b), 167.007 to 167.017, 167.054, 167.057, 167.062 to 167.080,
167.090, 167.122 to 167.137, 167.147, 167.164, 167.167, 167.212,
167.355, 167.365, 167.370, 167.428, 167.431 and 167.439, relating
to prostitution, obscenity, sexually explicit material, sexual
conduct, gambling, computer crimes involving the Oregon State
Lottery, animal fighting, forcible recovery of a fighting bird
and related offenses;
(U) ORS 171.990, relating to legislative witnesses;
(V) ORS 260.575 and 260.665, relating to election offenses;
(W) ORS 314.075, relating to income tax;
(X) ORS 180.440 (2) and { + section 13 (2) of this 2009 Act
and + } ORS chapter 323, relating to cigarette and tobacco
products taxes and the { - directory - } { + directories + }
developed under ORS 180.425 { + and section 10 of this 2009
Act + };
(Y) ORS 411.630, 411.675, 411.690 and 411.840, relating to
public assistance payments, and ORS 411.990 (2) and (3);
(Z) ORS 462.140, 462.415 and 462.420 to 462.520, relating to
racing;
(AA) ORS 463.995, relating to boxing, mixed martial arts and
entertainment wrestling, as defined in ORS 463.015;
(BB) ORS 471.305, 471.360, 471.392 to 471.400, 471.403,
471.404, 471.405, 471.425, 471.442, 471.445, 471.446, 471.485,
471.490 and 471.675, relating to alcoholic liquor, and any of the
provisions of ORS chapter 471 relating to licenses issued under
the Liquor Control Act;
(CC) ORS 475.005 to 475.285 and 475.840 to 475.980, relating to
controlled substances;
(DD) ORS 480.070, 480.210, 480.215, 480.235 and 480.265,
relating to explosives;
(EE) ORS 819.010, 819.040, 822.100, 822.135 and 822.150,
relating to motor vehicles;
(FF) ORS 658.452 or 658.991 (2) to (4), relating to farm labor
contractors;
(GG) ORS chapter 706, relating to banking law administration;
(HH) ORS chapter 714, relating to branch banking;
(II) ORS chapter 716, relating to mutual savings banks;
(JJ) ORS chapter 723, relating to credit unions;
(KK) ORS chapter 726, relating to pawnbrokers;
(LL) ORS 166.382 and 166.384, relating to destructive devices;
(MM) ORS 165.074;
(NN) ORS 59.840 to 59.980, relating to mortgage bankers and
mortgage brokers;
(OO) ORS chapter 496, 497 or 498, relating to wildlife;
(PP) ORS 163.355 to 163.427, relating to sexual offenses;
(QQ) ORS 166.015, relating to riot;
(RR) ORS 166.155 and 166.165, relating to intimidation;
(SS) ORS chapter 696, relating to real estate and escrow;
(TT) ORS chapter 704, relating to outfitters and guides;
(UU) ORS 165.692, relating to making a false claim for health
care payment;
(VV) ORS 162.117, relating to public investment fraud;
(WW) ORS 164.170 or 164.172;
(XX) ORS 647.140, 647.145 or 647.150, relating to trademark
counterfeiting;
(YY) ORS 164.886;
(ZZ) ORS 167.312 and 167.388;
(AAA) ORS 164.889;
(BBB) ORS 165.800; or
(CCC) ORS 163.263, 163.264 or 163.266.
(b) Any conduct defined as 'racketeering activity' under 18
U.S.C. 1961 (1)(B), (C), (D) and (E).
(7) 'Unlawful debt' means any money or other thing of value
constituting principal or interest of a debt that is legally
unenforceable in the state in whole or in part because the debt
was incurred or contracted:
(a) In violation of any one of the following:
(A) ORS chapter 462, relating to racing;
(B) ORS 167.108 to 167.164, relating to gambling; or
(C) ORS 82.010 to 82.170, relating to interest and usury.
(b) In gambling activity in violation of federal law or in the
business of lending money at a rate usurious under federal or
state law.
(8) Notwithstanding contrary provisions in ORS 174.060, when
this section references a statute in the Oregon Revised Statutes
that is substantially different in the nature of its essential
provisions from what the statute was when this section was
enacted, the reference shall extend to and include amendments to
the statute.
SECTION 26. ORS 646.608, as amended by section 8, chapter 19,
Oregon Laws 2008, and section 5, chapter 31, Oregon Laws 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) { - . - } { + or section 13
(1) of this 2009 Act. + }
(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 a provision of sections 2 to 6, chapter 19,
Oregon Laws 2008.
(kkk) Violates section 2, chapter 31, Oregon Laws 2008, 30 or
more days after a recall notice, warning or declaration described
in section 2, chapter 31, Oregon Laws 2008, is issued for the
children's product, as defined in section 1, chapter 31, Oregon
Laws 2008, that is the subject of the violation.
(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 27. ORS 180.205 is amended to read:
180.205. (1) The Tobacco Enforcement Fund is established
separate and distinct from the General Fund. The Tobacco
Enforcement Fund shall consist of:
(a) Moneys deposited into the fund under ORS 180.450 { + and
section 15 of this 2009 Act + }; and
(b) Moneys transferred to the fund under ORS 293.537.
(2) Moneys in the Tobacco Enforcement Fund are continuously
appropriated to the Department of Justice for the purpose of
enforcing the provisions of ORS 180.400 to 180.455, 323.106 and
323.806 { + and sections 6 to 16 and 18 to 20 of this 2009
Act + }. Moneys in the fund are not subject to allotment under
ORS 291.234 to 291.260.
SECTION 28. { + Sections 6 to 16 and 18 to 20 of this 2009 Act
and the amendments to ORS 131.602, 166.715, 180.205, 323.500,
323.505, 323.520, 323.530, 323.706 and 646.608 by sections 1, 2
and 21 to 27 of this 2009 Act apply to smokeless tobacco products
distributed on or after January 1, 2010. + }
SECTION 29. { + This 2009 Act takes effect on the 91st day
after the date on which the regular session of the Seventy-fifth
Legislative Assembly adjourns sine die. + }
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