76th OREGON LEGISLATIVE ASSEMBLY--2011 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 1570
Senate Bill 695
Sponsored by Senators DINGFELDER, BOQUIST; Senators ATKINSON,
EDWARDS, ROSENBAUM
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.
Creates unlawful practice of manufacturing, distributing,
selling or offering for sale child's beverage container,
container of infant formula or reusable bottle made or lined with
bisphenol A or replacement material that is carcinogenic or is
reproductive toxicant. Requires manufacturers of containers and
reusable bottles made or lined with bisphenol A to recall
containers and bottles. Requires manufacturers to make reasonable
effort to notify person who distributes, sells or offers for sale
manufacturer's containers or reusable bottles of prohibition at
least 90 days before operative date of prohibition.
Makes prohibition on manufacture, distribution, sale or offer
for sale of child's beverage container or reusable bottle
operative January 1, 2012.
Makes prohibition on manufacture, distribution, sale or offer
for sale of container of infant formula operative January 1,
2013.
Creates unlawful practice of manufacturing, distributing,
selling or offering for sale metal can made or lined with
bisphenol A that contains food unless label is affixed advising
that can is made or lined with bisphenol A. Requires
manufacturers of cans to make reasonable effort to notify person
who distributes, sells or offers for sale manufacturer's cans of
prohibition at least 90 days before operative date of
prohibition.
Makes prohibition on manufacture, distribution, sale or offer
for sale of metal can without label operative January 1, 2013.
Requires Department of Human Services to identify containers on
approved food list of Women, Infants and Children Program that
are not made or lined with bisphenol A.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to containers made from substances harmful to humans;
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 2 to 8 of this 2011 Act:
(1) 'Bisphenol A' means an industrial chemical used in the
manufacture of polycarbonate plastic and epoxy resins.
(2) 'Child's beverage container' means any empty baby bottle or
spill-proof cup that is:
(A) Distributed or sold at retail without containing any
liquid, food, beverage or other contents;
(B) Designed to be filled with liquid; and
(C) Primarily intended by the manufacturer for use by a child
three years of age or younger.
(3) 'Container' means an individual bottle or can designed to
contain food or liquid for human consumption that is commercially
available but does not include a container intended for disposal
after initial use.
(4) 'Food' means any substance that is intended to be used for
human consumption and that is commercially available.
(5) 'Infant formula' means a milk-based or soy-based powder,
concentrated liquid or ready-to-feed substitute for human breast
milk that is intended for infant consumption and that is
commercially available.
(6) 'Label' means a display of written, printed or graphic
information appearing on the outside portion of a container and
that is visible without opening the container.
(7) 'Liquid or beverage' means water and flavored water,
mineral water, soda water, soft drinks, juices, drinks and any
other liquid or beverage intended for human consumption and
includes human breast milk and infant formula.
(8) 'Metal can' means a single-walled container that is
manufactured from a metal substrate and designed to hold food and
that is commercially available.
(9) 'Person' has the meaning given that term in ORS 646.605.
(10) 'Reusable bottle' means a resealable, reusable container,
64 ounces or less in size, that is designed and intended
primarily to be filled with a liquid or beverage for consumption
from the container, and that is sold, offered for sale or
distributed at retail without containing any liquid or
beverage. + }
SECTION 2. { + A person may not willfully or knowingly
manufacture, distribute, sell or offer for sale at retail in this
state any child's beverage container or reusable bottle that is
made or lined with:
(1) Bisphenol A; or
(2) Any material or substance that is designed and intended by
the manufacturer to replace bisphenol A if the material or
substance:
(a) Has been determined by the United States Environmental
Protection Agency to be:
(A) Carcinogenic or likely to be carcinogenic to humans or for
which there is suggestive evidence of carcinogenic potential; or
(B) A reproductive toxicant that causes birth defects,
reproductive harm or developmental harm; or
(b) Appears in the list of chemicals that have been determined
by the state of California to cause cancer or reproductive
toxicity as required by the Safe Drinking Water and Toxic
Enforcement Act of 1986 (California Health and Safety Code,
section 25249.5 et seq.) as in effect on the effective date of
this 2011 Act. + }
SECTION 3. { + A person may not willfully or knowingly
manufacture, distribute, sell or offer for sale at retail in this
state any container of infant formula that is made or lined with:
(1) Bisphenol A; or
(2) Any material or substance that is designed and intended by
the manufacturer to replace bisphenol A if the material or
substance:
(a) Has been determined by the United States Environmental
Protection Agency to be:
(A) Carcinogenic or likely to be carcinogenic to humans or for
which there is suggestive evidence of carcinogenic potential; or
(B) A reproductive toxicant that causes birth defects,
reproductive harm or developmental harm; or
(b) Appears in the list of chemicals that have been determined
by the state of California to cause cancer or reproductive
toxicity as required by the Safe Drinking Water and Toxic
Enforcement Act of 1986 (California Health and Safety Code,
section 25249.5 et seq.) as in effect on the effective date of
this 2011 Act. + }
SECTION 4. { + A person may not willfully or knowingly
manufacture, distribute, sell or offer for sale at retail in this
state any metal can made or lined with bisphenol A and containing
food unless a label is clearly and conspicuously affixed to it
advising that the metal can is made or lined with bisphenol
A. + }
SECTION 5. { + A person who manufactures any child's beverage
container or reusable bottle that is made or lined with bisphenol
A for distribution, sale or offer for sale in this state shall
make a reasonable effort to notify any person who distributes,
sells or offers for sale in this state the manufacturer's
containers or reusable bottles that are made or lined with
bisphenol A of the prohibition of section 2 of this 2011 Act at
least 90 days before the operative date specified in section 15
of this 2011 Act. + }
SECTION 6. { + A person who manufactures any container of
infant formula or any metal can that is made or lined with
bisphenol A for distribution, sale or offer for sale in this
state shall make a reasonable effort to notify any person who
distributes, sells or offers for sale in this state the
manufacturer's containers or cans that are made or lined with
bisphenol A of the prohibition of sections 3 and 4 of this 2011
Act at least 90 days before the operative date specified in
section 16 of this 2011 Act. + }
SECTION 7. { + A person who manufactures any child's beverage
container or reusable bottle made or lined with bisphenol A for
distribution, sale or offer for sale in this state shall recall
any child's beverage container or reusable bottle made or lined
with bisphenol A and adequately reimburse the retailer or
consumer for the cost of the container and the cost to comply
with the recall. + }
SECTION 8. { + A person who manufactures any container of
infant formula made or lined with bisphenol A for distribution,
sale or offer for sale in this state shall recall any container
of infant formula made or lined with bisphenol A and adequately
reimburse the retailer or consumer for the cost of the container
and the cost to comply with the recall. + }
SECTION 9. { + (1) The Department of Human Services shall
identify any child's beverage container, any container of infant
formula and any other container of food, liquid or beverage that
appears on the list of approved foods for the Women, Infants and
Children Program that is not made or lined with bisphenol A.
(2) The department shall report annually to the appropriate
committees or interim committees of the Legislative Assembly
regarding the availability of children's beverage containers,
containers of infant formula and other containers of food, liquid
or beverage that are not made or lined with bisphenol A and that
are listed as approved by the Women, Infants and Children
Program. + }
SECTION 10. 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 ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
{ + (rrr) Violates a provision of section 2 or 7 of this 2011
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)(xx)
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 11. ORS 646.608, as amended by section 10 of this 2011
Act, is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as those of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that they do not have or that a
person has a sponsorship, approval, status, qualification,
affiliation, or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if they are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide them as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
when not authorized by the owner or apparent owner thereof.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon occurrence of an event subsequent to the time the
customer enters into the transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver them as
promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is 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 ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
(rrr) Violates a provision of section { - 2 or 7 - } { + 2,
3, 4, 7 or 8 + } of this 2011 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)(xx)
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 12. { + The Department of Human Services shall first
report to the Legislative Assembly as described in section 9 of
this 2011 Act on or before January 15, 2012. + }
SECTION 13. { + Sections 2 and 7 of this 2011 Act and the
amendments to ORS 646.608 by section 10 of this 2011 Act apply to
a person that operates as a manufacturer, distributor or retailer
of any child's beverage container or reusable bottle on or after
the operative date specified in section 15 of this 2011 Act. + }
SECTION 14. { + Sections 3, 4 and 8 of this 2011 Act and the
amendments to ORS 646.608 by section 11 of this 2011 Act apply to
a person that operates as a manufacturer, distributor or retailer
of any container of infant formula or metal can on or after the
operative date specified in section 16 of this 2011 Act. + }
SECTION 15. { + Sections 2 and 7 of this 2011 Act and the
amendments to ORS 646.608 by section 10 of this 2011 Act become
operative on January 1, 2012. + }
SECTION 16. { + Sections 3, 4 and 8 of this 2011 Act and the
amendments to ORS 646.608 by section 11 of this 2011 Act become
operative on January 1, 2013. + }
SECTION 17. { + This 2011 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2011 Act takes effect on
its passage. + }
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