Chapter 646A — Trade Regulation

2021 EDITION

TRADE REGULATION

TRADE REGULATIONS AND PRACTICES

SALES

(Health Spas)

646A.030 Definitions for ORS 646A.030 to 646A.042

646A.032 Price list for health spa services

646A.034 Contracts; contents

646A.036 Contracts and rules; delivery to buyer

646A.038 Moneys paid prior to facility opening; disposition; priority of claim; refund

646A.040 Waiver of provisions of ORS 646A.030 to 646A.042

646A.042 Remedies and obligations supplementary to existing remedies

(Manufactured Dwellings)

646A.050 Definitions

646A.052 Form of purchase agreement

646A.054 Rules

(Purchase of Used Goods)

646A.060 Purchase of used goods; records; application to pawnbrokers

646A.062 Penalty for violation of ORS 646A.060

646A.064 Definitions for ORS 646A.064 to 646A.067

646A.065 Records required for transactions involving items of precious metal; maintenance required of precious metal secondhand dealer; retention of items of precious metal

646A.066 Applicability to local ordinances

646A.067 Preemption of local requirements applicable to pawnbrokers

646A.068 Penalty for violating ORS 646A.065

(Telephonic Equipment)

646A.070 Sale of telephonic equipment; disclosure requirements; enforcement; penalty

646A.072 Exceptions to disclosure requirements

(Retail Pet Stores)

646A.075 Required information prior to purchase of dog

646A.077 Qualification for full refund; replacement dog; reimbursement for cost of veterinary care; exceptions

(Miscellaneous Sales Transactions)

646A.080 Sale of novelty item containing mercury; penalty

646A.081 Prohibition on sale or installation of mercury vapor outdoor lighting fixtures

646A.082 Floral retail sales; disclosure of principal place of business; enforcement; penalty

646A.085 Sale of rights by distributor to exhibit motion picture without first giving exhibitor opportunity to view motion picture prohibited; attorney fees

646A.090 Offer to sell or lease motor vehicle under retail installment contract or lease agreement; return of items if lender does not approve loan; charges for use of vehicle; exceptions

646A.092 Advertisements for sale or lease of motor vehicle; exceptions

646A.093 Disclosures for handling and shipping consumer goods required in advertisements, offers and sales; penalty

646A.095 Disclosure required when purchaser of product offered technical support through information delivery system

646A.097 Payment of sales commissions following termination of contract between sales representative and principal; definitions; civil action

(Going Out of Business Sales)

646A.100 Definitions for ORS 646A.100 to 646A.110

646A.102 Notice of intent to conduct going out of business sale; display and filing; exceptions; prohibited activities

646A.104 Information required in notice of intent

646A.106 Circumstances in which going out of business sale prohibited

646A.108 Prohibited conduct

646A.110 Applicability of ORS 646A.100 to 646A.110 and 646A.112

646A.112 Injunction of sham sale; evidence; attorney fees; defense; definitions

646A.115 Software prohibited that interferes with sale of admission tickets to entertainment events; unlawful practice

RENTAL AND LEASE AGREEMENTS

(Lease-Purchase Agreements)

646A.120 Definitions for ORS 646A.120 to 646A.134

646A.122 Applicability of ORS 646A.120 to 646A.134

646A.124 General disclosure requirements

646A.126 Specific disclosure requirements

646A.128 Provisions prohibited in lease-purchase agreements

646A.130 Reinstatement of lease-purchase agreement by consumer; receipt for each payment

646A.132 Renegotiation or extension of lease-purchase agreement

646A.134 Disclosures required in advertisement for lease-purchase agreements

(Collision Damage Waivers in Vehicle Rentals)

646A.140 Definitions for ORS 646A.140 and 646A.142

646A.142 Rental vehicle collision damage waiver notice

SERVICE CONTRACTS

646A.150 Applicability of ORS 646A.150 to 646A.172

646A.152 Definitions for ORS 646A.150 to 646A.172

646A.154 Service contract defined; registration; proof of financial stability; bond; action; rules; applicability of Insurance Code

646A.156 Required contents of service contracts

646A.158 Prohibited conduct

646A.160 Service contract obligor as agent of insurer; indemnification or subrogation rights of insurer

646A.162 Investigation of violations; inspection of records; subpoenas; discontinue or desist order; civil penalties

646A.164 Complaints and investigations confidential; exceptions

646A.166 Refusal to continue or suspension or revocation of registration

646A.168 Assessment fee; rules; purpose; registration fee

646A.170 Remedies not exclusive

646A.172 Rules; exemption of certain obligors

CREDIT AND PURCHASING

(Credit and Debit Card Receipts)

646A.200 Definitions for ORS 646A.202 and 646A.204

646A.202 Payment processing systems

646A.204 Customer information

646A.206 Rules

(Numbers, Expiration Dates or Personal Information in Credit or Debit Card Transactions)

646A.210 Requiring credit card number as condition for accepting check or share draft prohibited; exceptions

646A.212 “Credit card” defined

646A.214 Verification of identity in credit or debit card transactions

(Credit and Charge Card Solicitation Disclosure Requirements)

646A.220 Credit card solicitation; required disclosure; definitions

646A.222 Charge card solicitation; required disclosure; definitions

(Enforcement)

646A.230 Action by Attorney General or district attorney; civil and criminal penalties

646A.232 Effect of compliance with federal law

(Extension of Credit)

646A.240 Treatment of child support obligations by creditor in applications for extensions of credit

646A.242 “Creditor” defined

646A.244 Cause of action for violation of ORS 646A.240; injunction; attorney fees; defenses

(Gift Cards)

646A.274 Definitions for ORS 646A.276 and 646A.278

646A.276 Sale of gift card that expires, declines in value, includes fee or does not give option to redeem

646A.278 Requirements for sale of gift card that expires

(Simulated Invoices)

646A.280 Definitions for ORS 646A.280 to 646A.290

646A.282 Simulated invoices prohibited

646A.284 Cause of action by Attorney General; judgment; attorney fees

646A.286 Cause of action by private party; judgment; attorney fees

646A.288 Presumptions in cause of action brought under ORS 646A.284 or 646A.286

646A.290 Construction; other remedies

(Automatic Renewal and Continuous Service Offers)

646A.292 Legislative intent

646A.293 Definitions for ORS 646A.293 and 646A.295

646A.295 Prohibited actions; requirements; timing; failure to obtain consent; exceptions

REPURCHASING

(Repurchase of Farm Implements by Supplier From Retailer)

646A.300 Definitions for ORS 646A.300 to 646A.322

646A.302 Application of ORS 646A.300 to 646A.322 to successor in interest or assignee of supplier

646A.304 Payment for farm implements, parts, software, tools and signs upon termination of retailer agreement

646A.306 Repurchase of inventory by supplier; effect of new retailer agreement

646A.308 Civil action for supplier’s failure to pay; venue

646A.310 Prohibited conduct by supplier

646A.312 Termination, cancellation or nonrenewal of retailer agreement; notice; good cause

646A.314 New or relocated dealership; notice; area of responsibility

646A.316 Warranty claims; payment; time for completion

646A.318 Warranty claims; processing

646A.320 Retailer’s improvements to products

646A.322 Remedies; arbitration; cause of action; attorney fees; injunctive relief

(Repurchase of Motor Vehicles)

646A.325 Repurchase of motor vehicle by manufacturer; notice to dealer; contents of notice; notice to prospective buyer

646A.327 Attorney fees for action under ORS 646A.325

MAILINGS AND DELIVERIES

(Mail Agents)

646A.340 Definitions for ORS 646A.340 to 646A.348

646A.342 Prohibited conduct; required verifications and notice

646A.344 Bond or letter of credit; action; exceptions

646A.346 Damages

646A.348 Action by Attorney General; civil penalty; injunction; damages; attorney fees and costs

(Delivery of Hazardous Materials)

646A.350 Delivery of unrequested hazardous substances prohibited

646A.352 Penalty

(Other Mailings or Deliveries)

646A.360 Unsolicited facsimile machine transmissions

646A.362 Exclusion of name from sweepstakes promotion mailing list; written request; rules

646A.365 Check, draft or payment instrument creating obligation for payment

AUTOMATIC DIALING AND ANNOUNCING DEVICES

646A.370 Definitions for ORS 646A.370 to 646A.374

646A.372 Limits on usage of automatic dialing and announcing device

646A.374 Prohibited actions

646A.376 Enforcement; civil penalty

WARRANTY REGULATION AND ENFORCEMENT

(Enforcement of Express Warranties on New Motor Vehicles)

646A.400 Definitions for ORS 646A.400 to 646A.418

646A.402 Availability of remedy

646A.404 Consumer’s remedies; manufacturer’s affirmative defenses

646A.405 Manufacturer action under ORS 646A.404; request to Department of Transportation; notice to buyer; unlawful practice; rules

646A.406 Presumption of reasonable attempt to conform; extension of time for repairs; notice to manufacturer

646A.408 Use of informal dispute settlement procedure as condition for remedy; binding effect on manufacturer

646A.410 Informal dispute settlement procedure; recordkeeping; review by Department of Justice

646A.412 Action in court; damages if manufacturer does not act in good faith; attorney fees; expert witness fees; costs

646A.414 Limitations on actions against dealers

646A.416 Limitation on commencement of action

646A.418 Remedies supplementary to existing statutory or common law remedies; election of remedies

(Vehicle Protection Product Warranties)

646A.430 Definitions for ORS 646A.430 to 646A.450

646A.432 Applicability of ORS 646A.430 to 646A.450; applicability of other law

646A.434 Sale of vehicle protection product; conditions and requirements

646A.436 Warrantor registration; requirements; expiration; fees; rules

646A.438 Reimbursement insurance; requirements; insurer qualifications

646A.440 Required provisions of reimbursement insurance policy; cancellation; notice

646A.442 Vehicle protection product warranty administrator

646A.444 Recordkeeping requirements for warrantor; record retention

646A.446 Prohibited conduct for warrantor

646A.448 Prohibited activities

646A.450 Rules; investigative powers of department

646A.452 Enforcement by Attorney General

(Warranties on Assistive Devices)

646A.460 Definitions for ORS 646A.460 to 646A.476

646A.462 Express warranty; duration

646A.464 Repair of assistive device

646A.466 Replacement or refund after attempt to repair

646A.468 Procedures for replacement or refund

646A.470 Sale or lease of returned assistive device

646A.472 Dispute resolution

646A.474 Applicability of other laws; waiver

646A.476 Civil action for damages; attorney fees; limitation on actions

VEHICLE REPAIR SHOPS

646A.480 Definitions for ORS 646A.480 to 646A.495

646A.482 Estimate required before beginning work; contents; evaluation

646A.486 Prohibited actions if estimate exceeds $200; revision of estimate; methods to obtain owner authorization

646A.490 Additional prohibited actions; reassembly required; copies

646A.495 Owner designee; waiver of authorization requirement

INFANT CRIB SAFETY

646A.500 Legislative findings; declaration of purpose

646A.502 Short title

646A.504 Definitions for ORS 646A.500 to 646A.514

646A.506 Prohibited conduct

646A.508 Penalties

646A.510 Exemptions

646A.512 Private right of action; attorney fees

646A.514 Scope of remedies

CHILDREN’S PRODUCTS

646A.525 Definitions for ORS 646A.525 to 646A.535

646A.530 Prohibited sales of certain children’s products; recall notices and warnings; disposal of recalled children’s products; compliance with warning instructions

646A.535 Assistance of Attorney General in obtaining recall notices

PREMOISTENED WIPES

646A.540 Definitions; labeling and packaging requirements; preemption

646A.542 Requirement to document compliance

646A.544 Local government enforcement; notice required; penalties

LICENSES

646A.550 Short title

646A.555 License to engage in business activity not required for individual under 17 years of age

MERCURY IN LIGHTING PRODUCTS

646A.560 Legislative findings

646A.562 Definitions for ORS 646A.560 to 646A.566

646A.564 Standards for mercury content in electric lamps; exceptions

646A.566 Considerations for state agency procurement of lighting devices that contain mercury

PORTABLE ELECTRONICS INSURANCE

646A.575 Definitions for ORS 646A.575 to 646A.590

646A.577 Limited license required; application; fee; renewal; prohibited representations

646A.580 Cost of coverage; billing requirements; remission to insurer or supervising entity; funds held in trust; compensation

646A.582 Written disclosure requirements

646A.585 Exceptions to license requirement; prohibited representations; acts of employees

646A.588 Restrictions on modification or termination of coverage; notice; consent to notice

646A.590 Rules

646A.592 Enforcement

IDENTITY THEFT PREVENTION

646A.600 Short title

646A.602 Definitions for ORS 646A.600 to 646A.628

646A.604 Notice of breach of security; delay; methods of notification; contents of notice; application of notice requirement

646A.606 Security freeze; requirements; proof of authority; effect

646A.608 Deadline for placing security freeze; protective record creation; use and release of information; confirmation; personal identification number; exception; lifting and removal

646A.610 Fees not permitted

646A.612 Conditions for lifting or removing security freeze

646A.614 Effect of security freeze on use of consumer reports or protective records

646A.616 Effect of request for consumer report subject to security freeze

646A.618 Prohibition on changes to consumer report subject to security freeze; entities subject to requirement to place security freeze

646A.620 Prohibition on printing, displaying or posting Social Security numbers; exemptions

646A.622 Requirement to develop safeguards for personal information; conduct deemed to comply with requirement; defenses

646A.624 Powers of director; penalties

646A.626 Rules

646A.628 Allocation of moneys

(Temporary provisions relating to collection of personal health data in connection with COVID-19 exposure are compiled as notes following ORS 646A.628)

DEBT COLLECTION

(Debt Buyers)

646A.640 Definitions

646A.643 License requirement to engage in debt buying; exemptions

646A.649 Licensee’s principal place of business and registered agent; assumed business name; display of license; rules

646A.652 Required notices

646A.655 Compliance with director’s standards; rules

646A.658 Prohibited practices

646A.664 Enforcement actions; penalties

646A.667 Preemption

646A.670 Legal action to collect debt; requirements for pleadings; judgments; attorney fees

646A.673 Rules

(Medical Debt)

646A.677 Requirement to screen for financial assistance before transferring medical debt for collection; permitted interest rate; unlawful collection practices

DRUG PRICING AND SALES

646A.680 Legislative intent

646A.683 Requirement to report increase in drug price; exemptions

646A.686 Short title

646A.689 Requirement to report certain information concerning drug manufacturing and pricing; contents of report; penalty; rules

646A.692 Civil penalty

PRESCRIPTION DRUG AFFORDABILITY BOARD

646A.693 Prescription Drug Affordability Board; membership and qualifications of members; terms of office; duties; conflicts of interest; rules

646A.694 Annual affordability determination for identified drugs and insulin products; criteria for and limitations on determination; confidentiality; rules

646A.695 Annual fees assessed against drug manufacturers; rules

646A.696 Report to Health Care Cost Growth Target program and Legislative Assembly; contents of report

646A.697 Study of market for generic drugs; effect of pricing on insurance premiums; report to Legislative Assembly

MORTGAGE RESCUE FRAUD PREVENTION ACT

(Foreclosure Consultants)

646A.700 Short title

646A.702 Definitions for ORS 646A.702 to 646A.720

646A.705 Persons that are not foreclosure consultants

646A.710 Foreclosure consulting contract; requirements; void provisions

646A.715 Cancellation; effective date; payment for services provided before cancellation or breach; form; sufficiency of notice

646A.720 Prohibited acts of foreclosure consultant

(Equity Conveyances)

646A.725 Definitions for ORS 646A.725 to 646A.750

646A.730 Persons that are not equity purchasers

646A.735 Written contract; requirements; void provisions; power of attorney prohibited

646A.740 Cancellation; effective date; rebuttable presumption of delivery; payment for services; form; sufficiency of notice; return of documents

646A.745 Required and prohibited acts

646A.750 Rebuttable presumptions; accounting; bona fide purchaser; memorandum of agreement; form

646A.755 Acts not precluded

646A.760 Civil action for damages; attorney fees and costs; limitation on commencement of action

(Penalties)

646A.765 Penalties

GUARANTEED ASSET PROTECTION WAIVERS

646A.770 Definitions

646A.773 Applicability of Insurance Code; statement of costs; exemptions

646A.776 Required disclosures; cancellation provisions; effect on motor vehicle purchaser’s credit

646A.779 Determination of amount of waiver; waivers that are required and waivers that are not required

646A.781 Cancellation and expiration; refunds; effect of sale, assignment or transfer

646A.784 Reimbursement insurance policies for guaranteed asset protection waivers

646A.787 Fiduciary responsibilities

646A.790 Unlawful practices

MISCELLANEOUS

646A.800 Late fees on delinquent cable service accounts; amount; disclosure; notice

646A.801 Termination of residential cable service or residential telecommunications service for certain persons

646A.803 Contest and sweepstakes solicitations; required disclosures; prohibited representations

646A.806 Website with photographs and information about arrested persons; requirement to remove photographs and information upon request; penalty

646A.808 Obtaining personal information by false representation via electronic media

646A.810 Patent infringement claim made in bad faith; enforcement as unlawful practice; limitations; rules

646A.813 Security requirements for Internet-connected devices; exemptions; penalty

646A.010 [Formerly 646.185; repealed by 2009 c.170 §4]

646A.012 [Formerly 646.187; repealed by 2009 c.170 §4]

646A.014 [Formerly 646.189; repealed by 2009 c.170 §4]

646A.016 [Formerly 646.191; repealed by 2009 c.170 §4]

646A.018 [Formerly 646.193; repealed by 2009 c.170 §4]

646A.020 [Formerly 646.195; repealed by 2009 c.170 §4]

SALES

(Health Spas)

646A.030 Definitions for ORS 646A.030 to 646A.042. As used in ORS 646A.030 to 646A.042, unless the context requires otherwise:

(1) “Business day” means any day except a Sunday or a legal holiday.

(2) “Buyer” means a person who purchases health spa services.

(3) “Conspicuous” has the meaning given that term in ORS 71.2010 (2)(j).

(4) “Health spa” means any person engaged, as a primary purpose, in the sale of instruction, training, assistance or use of facilities that are purported to assist patrons in physical exercise, weight control or figure development. The term also includes any person engaged primarily in the sale of the right or privilege to use tanning booths, exercise equipment or facilities, such as a sauna, whirlpool bath, weight-lifting room, massage, steam room, or other exercising machine or device. “Health spa” does not include any facility owned and operated by the State of Oregon or any of its political subdivisions.

(5) “Health spa services” means services, privileges or rights offered for sale by a health spa.

(6) “Person” has the meaning given that term in ORS 646.605 (4). [Formerly 646.661; 2009 c.181 §106]

646A.032 Price list for health spa services. (1) Each health spa shall prepare and provide to each prospective buyer a written list of prices of all forms or plans of health spa services offered for sale by the health spa.

(2) A health spa may not sell any form or plan of health spa services not included in the list. [Formerly 646.666]

646A.034 Contracts; contents. A contract for the sale of health spa services must be in writing and a copy must be given to the buyer at the time the buyer signs the contract. The contract must contain all of the following:

(1) Identification of the person providing the health spa services.

(2) A description of the health spa services to be provided, or acknowledgment in a conspicuous form that the buyer has received a written description of the health spa services to be provided. If any of the health spa services are to be delivered at a planned facility, at a facility under construction or through substantial improvement to an existing facility, the description must include a date for the completion of the facility, construction or improvement.

(3) A complete statement of the rules of the health spa or an acknowledgment in a conspicuous form that the buyer has received a copy of the rules.

(4) A statement of the duration of the obligation of the health spa to provide health spa services to the buyer. The duration shall not exceed three years from the date of the contract.

(5) A provision for cancellation of the contract:

(a) If the buyer dies or becomes physically unable to use a substantial portion of those health spa services used by the buyer from the date of the contract until the time of disability. The contract may require that disability be confirmed by an examination of a physician agreeable to the buyer and the health spa.

(b) If the health spa goes out of business.

(c) If the health spa moves its facility closest to the residence of the buyer on the date of the contract to a location more than five additional miles from that residence.

(d) If a facility, construction or improvement is not completed by the date represented in the contract.

(e) If the health spa materially changes the health spa services promised as a part of the initial contract.

(6) A provision for a refund upon cancellation in an amount computed by dividing the contract price by the number of weeks in the contract term and multiplying the result by the number of weeks remaining in the contract term.

(7) A provision under a conspicuous caption in capital letters and boldfaced type stating:

______________________________________________________________________________

BUYER’S RIGHT TO CANCEL

If you wish to cancel this contract, without penalty, you may cancel it by delivering or mailing a written notice to the health spa. The notice must say that you do not wish to be bound by the contract and must be delivered or mailed before midnight of the third business day after you sign this contract. The notice must be mailed to: _________ (insert name and mailing address of health spa). If you cancel within the three days, the health spa will return to you within 15 days all amounts you have paid.

______________________________________________________________________________ [Formerly 646.671]

646A.036 Contracts and rules; delivery to buyer. Upon request, a health spa must deliver to a prospective buyer copies of the contract required by ORS 646A.034, and the rules of the health spa if not stated in the contract, and must allow the prospective buyer to retain the copies so provided. [Formerly 646.676]

646A.038 Moneys paid prior to facility opening; disposition; priority of claim; refund. (1) All moneys paid to a health spa by a buyer prior to the opening of the facility shall promptly be deposited by the health spa in a trust account, maintained by the health spa for the purpose of holding such moneys for the buyer, in a bank, savings and loan association, mutual savings bank or licensed escrow agent located in Oregon.

(2) The health spa shall within seven days of the first deposit notify the office of the Attorney General, in writing, of the name, address and location of the depository and any subsequent change thereof.

(3) The health spa shall provide the buyer with a written receipt for the moneys and shall provide written notice of the name, address and location of the depository and any subsequent change thereof.

(4) If prior to the opening of the facility the status of the health spa is transferred to another, any sums in the trust account affected by such transfer shall simultaneously be transferred to an equivalent trust account of the successor, and the successor shall promptly notify the buyer and the office of the Attorney General of the transfer and of the name, address and location of the new depository.

(5) The buyer’s claim to any moneys under this section is prior to that of any creditor of the health spa, including a trustee in bankruptcy or receiver, even if such moneys are commingled.

(6) After the health spa receives a notice of cancellation of the agreement or if the health spa fails to open a facility at the stated date of completion the health spa shall within 10 days give a full refund to the buyer, including the buyer’s pro rata share of any interest earned thereon.

(7) All sums received by a health spa in excess of the health spa’s normal monthly dues shall be placed in escrow subject to the terms and provisions stated in this section in the event that the health spa is not fully operational or in the event that the health spa is promising future construction or improvements. [Formerly 646.681]

646A.040 Waiver of provisions of ORS 646A.030 to 646A.042. A health spa shall not request a buyer to waive any provision of ORS 646A.030 to 646A.042. Any waiver by a buyer of any provision of ORS 646A.030 to 646A.042 is contrary to public policy and is void and unenforceable. [Formerly 646.686]

646A.042 Remedies and obligations supplementary to existing remedies. The remedies and obligations provided in ORS 646A.030 to 646A.042 are in addition to any other remedies and obligations, civil or criminal, existing at common law or under the laws of this state. [Formerly 646.691]

(Manufactured Dwellings)

646A.050 Definitions. As used in this section and ORS 646A.052:

(1) “Base price” means the total retail cost of the following unless separately disclosed as described in ORS 646A.052 (2):

(a) The manufactured dwelling as provided by the manufacturer;

(b) Features added by the dealer, if any;

(d) Delivery and installation as stated in the purchase agreement.

(2) “Buyer” means a person who buys or agrees to buy a manufactured dwelling.

(3) “Improvements” means goods and services not included in the base price that are, in general, needed to prepare a site and complete the setup of a manufactured dwelling. “Improvements” includes, but is not limited to, permits, site preparation, sidewalks, concrete, utility connections, skirting, steps, railings, decks, awnings, carports, garages, sheds, gutters, downspouts, rain drains, heat pumps, air conditioning, basements, plants and landscaping, installation fees and system development charges.

(4) “Manufactured dwelling” has the meaning given that term in ORS 446.003.

(5) “Manufactured dwelling dealer” or “dealer” means a person who sells a manufactured dwelling in a manner that makes the person subject to the license requirement of ORS 446.671.

(6) “Purchase agreement” means the written contract between the manufactured dwelling dealer and the buyer for the purchase of a manufactured dwelling. “Purchase agreement” does not include documents of a retail installment contract or loan agreement entered into as part of the purchase transaction. [Formerly 646.400]

646A.052 Form of purchase agreement. (1) A manufactured dwelling dealer who sells a manufactured dwelling shall use a purchase agreement form that complies with this section and rules adopted in accordance with ORS 646A.054.

(2) The purchase agreement shall include the base price and a written itemization that clearly and conspicuously discloses the retail prices of the following, if not included in the base price:

(a) Manufactured dwelling options that are ordered by the buyer.

(b) The amount of any refundable or nonrefundable administrative or processing fees paid to or collected by the dealer and the circumstances under which the fees may be returned to the buyer.

(c) The amount of any earnest money paid and the circumstances under which the earnest money may be returned to the buyer.

(d) Improvements provided by the dealer, or by a third party at the request of the dealer, to the extent known to the dealer at the time of sale. The written itemization of improvements under this paragraph excuses the dealer from providing the buyer with a separate statement of estimated costs under ORS 90.518 for those itemized improvements.

(e) All loan fees and credit report fees paid to or collected by the dealer to obtain financing for the buyer’s purchase of the manufactured dwelling and the circumstances under which the fees may be returned to the buyer.

(f) Alterations and upgrades to the manufactured dwelling made by the dealer or by a third party at the request of the dealer.

(g) Goods and services provided by the dealer, or by a third party at the request of the dealer, that are not otherwise disclosed pursuant to this section.

(h) Fees for the issuance or updating of an ownership document.

(i) The extended warranty contract, if any.

(j) Delivery, installation or site access costs that are not otherwise disclosed pursuant to this section, if any.

(3) The purchase agreement form must be accompanied by a list, provided by the Department of Justice, of governmental consumer protection agencies having jurisdiction over manufactured dwelling issues.

(4) Failure of a manufactured dwelling dealer to use a purchase agreement form that complies with this section and rules adopted in accordance with ORS 646A.054 is an unlawful practice under ORS 646.608.

(5) Except as provided in ORS 41.740, a purchase agreement is considered to contain all of the terms of the contract between the buyer and the manufactured dwelling dealer. No evidence of the terms of the contract may be presented other than the contents of the purchase agreement. As used in this subsection, “contract” does not include a retail installment contract or loan agreement entered into as part of a purchase transaction. [Formerly 646.402]

646A.054 Rules. The Department of Justice may adopt rules necessary and proper for the administration and enforcement of ORS 646A.052. [Formerly 646.404]

(Purchase of Used Goods)

646A.060 Purchase of used goods; records; application to pawnbrokers. (1) A person doing business as a consignment store, a buy-sell store, a secondhand store or a similar store or enterprise that in the regular course of business buys used goods from individuals for the purpose of resale shall:

(a) Require that the individual from whom the person buys the used goods present proof of identification; and

(b) Maintain a record of the name and address of the individual, the type of identification provided by the individual, the date and a description of the goods bought from the individual.

(2) If the goods described in subsection (1) of this section are private metal property or are constructed of or contain parts made of nonferrous metal property as those terms are defined in ORS 165.116, in addition to the requirements of subsection (1) of this section, the person shall comply with and is subject to the penalty provided for violating a provision of ORS 165.117, 165.118 or 165.122 that is applicable to a scrap metal business as defined in ORS 165.116.

(3) The person shall make all records required to be maintained by subsection (1) of this section available to any peace officer on demand.

(4) This section does not apply to pawnbrokers licensed under ORS 726.080.

(5) This section does not preempt, invalidate or in any way affect the operation of any provision of a county, city or district ordinance regulating the activities of consignment stores, buy-sell stores, secondhand stores or similar stores or enterprises that in the regular course of business buy used goods from individuals for the purpose of resale. [Formerly 646.848; 2009 c.811 §13]

646A.062 Penalty for violation of ORS 646A.060. A person that violates ORS 646A.060 (1) commits a Class B violation. [Formerly 646.849; 2009 c.811 §14]

646A.064 Definitions for ORS 646A.064 to 646A.067. As used in ORS 646A.064 to 646A.067:

(1) “Item of precious metal” means an item that consists of or incorporates gold in eight karat or greater purity, silver, platinum or palladium. “Item of precious metal” does not include dental gold, unrefined metal ore, an electronic product, any part of a mechanical system on a motor vehicle, gold or silver coins or bullion in any form.

(2) “Precious metal secondhand dealer”:

(a) Means a person engaged in precious metal secondhand dealing; and

(b) Does not include:

(A) A pawnbroker licensed under ORS chapter 726 who engages exclusively in pledge loans, as defined in ORS 726.010;

(B) A manufacturer of items of precious metal;

(D) A person primarily engaged in business through the Internet;

(E) A motor vehicle dealer holding a certificate issued under ORS 822.020 or a motor vehicle dismantler holding a certificate issued under ORS 822.110; or

(F) A person primarily engaged in purchasing for resale newly manufactured items of precious metal. For purposes of this subparagraph, a person is primarily engaged in purchasing newly manufactured items of precious metal if the person’s inventory of items of precious metal for resale consists exclusively of:

(i) Newly manufactured items of precious metal acquired from a manufacturer; or

(ii) Items described in sub-subparagraph (i) of this subparagraph and used items of precious metal acquired for trade-in value as part of retail sales of newly manufactured items of precious metal by the person.

(3) “Precious metal secondhand dealing” means soliciting, receiving, purchasing, trading or accepting delivery of items of precious metal from individuals in return for money or other consideration.

(4) “Seller” means the other party to a transaction with a precious metal secondhand dealer.

(5) “Temporary precious metal secondhand dealer” means a precious metal secondhand dealer who conducts operations at one or more locations in this state for no more than five consecutive days at any one location.

(6) “Transaction”:

(a) Means a purchase, consignment, bailment, barter or trade of one or more items of precious metal by a precious metal secondhand dealer from an individual who is not engaged in the business of selling newly manufactured items of precious metal.

(b) Does not include:

(A) Gifts or other transfers of property unsupported by consideration; or

(B) Business-to-business purchases or other transfers. [2012 c.99 §1]

646A.065 Records required for transactions involving items of precious metal; maintenance required of precious metal secondhand dealer; retention of items of precious metal. (1) A precious metal secondhand dealer in this state shall maintain the following records with respect to each transaction conducted by the dealer:

(a) The full name, date of birth, current telephone number, current address and signature of the seller;

(b) The type and identification number of a currently valid government-issued photo identification that has been issued to the seller;

(d) An identifying description or a digital photograph of each item of precious metal that is the subject of the transaction.

(2) A precious metal secondhand dealer in this state shall:

(a) Maintain the records described in subsection (1) of this section for a period of at least one year after the date of the transaction; and

(b)(A) Maintain the records described in subsection (1) of this section at the location at which the dealer is engaged in precious metal secondhand dealing and allow inspection of the records by law enforcement officers upon request made during regular business hours; or

(B) If the dealer is a temporary precious metal secondhand dealer, maintain the records, or electronic copies of the records, at the current location where the dealer is engaged in precious metal secondhand dealing and allow inspection of the records or electronic copies by law enforcement officers upon request made during regular business hours.

(3) A precious metal secondhand dealer shall provide copies of records described in subsection (1) of this section if requested by law enforcement officers.

(4) A precious metal secondhand dealer in this state shall retain any item of precious metal acquired in a transaction for a period of seven days after the date of the transaction before the dealer may dispose of the item. The dealer shall keep items of precious metal subject to retention under this subsection segregated from other items, but at the location where the transaction occurred. The dealer shall allow inspection of items of precious metal subject to retention under this subsection if requested by law enforcement officers.

(5) Notwithstanding subsection (4) of this section, a temporary precious metal secondhand dealer may retain items subject to retention under subsection (4) of this section at a location of the dealer’s choosing in this state, but must provide an item of precious metal to a requesting law enforcement officer within 24 hours of the officer’s request for the item. Any cost incurred in providing a law enforcement officer with a requested item under this subsection shall be borne by the dealer. [2012 c.99 §2]

646A.066 Applicability to local ordinances. (1) ORS 646A.064 to 646A.067 do not apply within the jurisdiction of any city or county that the Secretary of State has identified as having in effect an ordinance that imposes on precious metal secondhand dealers:

(a) Substantially equivalent or more stringent record keeping requirements for transactions; and

(b) Equal or longer holding periods for items of precious metal that are acquired by precious metal secondhand dealers through transactions.

(2) The secretary shall maintain on the secretary’s website a list of cities and counties in which ORS 646A.064 to 646A.067 do not apply.

(3) Each city or county that has an ordinance in effect that the city or county determines is as described in subsection (1) of this section shall notify the secretary in writing and shall include a copy of the ordinance or an electronic link to the ordinance. If the city or county amends or repeals the ordinance, the city or county shall notify the secretary of the amendment or repeal and, in the case of an amendment, the city or county determination of whether the ordinance as amended still is as described in subsection (1) of this section. [2012 c.99 §3]

646A.067 Preemption of local requirements applicable to pawnbrokers. A city or county in this state may not require a precious metal secondhand dealer in this state who is also a pawnbroker licensed under ORS chapter 726 to provide a photograph of an item of precious metal acquired through a transaction. [2012 c.99 §4]

646A.068 Penalty for violating ORS 646A.065. (1) A person that violates the provisions of ORS 646A.065 commits a Class C violation.

(2) Notwithstanding subsection (1) of this section, a person that violates the provisions of ORS 646A.065 three or more times commits a Class A violation for each subsequent violation.

(3) Notwithstanding subsections (1) and (2) of this section, a person that violates the provisions of ORS 646A.065 six or more times is subject to a fine of not less than $5,000 for each subsequent violation. [2012 c.99 §5]

(Telephonic Equipment)

646A.070 Sale of telephonic equipment; disclosure requirements; enforcement; penalty. (1) Any person offering for sale or selling new or reconditioned telephone handsets or keysets, private branch exchanges or private automatic branch exchanges of not more than a 20-station capacity shall disclose clearly, in writing, when reasonable, before sale all of the following information:

(a) Whether the equipment uses pulse, tone, pulse-or-tone or other signaling methods.

(b) Whether the equipment can access tone generated services.

(d) The person responsible for repair of the equipment.

(e) Minimum charges, if any, for repairs, handling and shipping.

(f) The terms of any written warranty offered with the equipment.

(2) A person who violates subsection (1) of this section commits an unlawful practice under ORS 646.608. The requirement under subsection (1) of this section is subject to enforcement and penalty as provided under ORS 336.184 and 646.605 to 646.652. [Formerly 646.850]

646A.072 Exceptions to disclosure requirements. (1) The requirement of disclosure under ORS 646A.070 does not apply:

(a) To any medium of advertising that accepts advertising in good faith without knowledge that the advertising violates any requirement under ORS 646A.070.

(b) To the sale or the offering for sale of radio equipment used for land, marine or air mobile service or any like service, regardless of whether such equipment is capable of interconnection by manual or automatic means to a telephone line.

(c) To equipment not intended for connection to the telephone network or to used equipment located on the customer’s premises.

(2) The requirement of disclosure under ORS 646A.070 (1)(d), (e) and (f) does not apply if the seller satisfies applicable requirements under the federal Magnuson-Moss Warranty Act (15 U.S.C. 2301 to 2312), except that the seller must provide the purchaser a copy of the warranty at the time of sale. [Formerly 646.855]

(Retail Pet Stores)

646A.075 Required information prior to purchase of dog. (1) As used in this section:

(a) “Dog” means a member of the subspecies Canis lupus familiaris or a hybrid of that subspecies.

(b) “Litter” means one or more dogs, sold individually or together, that are all or part of a group of dogs born to the same mother at the same time.

(d) “Retail pet store” does not mean a person that sells or offers to sell only dogs:

(A) That were bred or raised by the person; or

(B) That are kept primarily for the purpose of reproduction.

(2) A retail pet store that offers a dog for sale shall, prior to accepting an offer to purchase the dog, provide the person making the offer with the following information, in writing, regarding the dog:

(a) If known, the breed, age and date of birth for the dog.

(b) The sex and color of the dog.

(c) A list, and accompanying proof, of all inoculations that have been given to the dog by any person, and the date of those inoculations.

(d) A list of all medical treatment provided to the dog by any person, the date or treatment and the reasons for the treatment.

(e) The name and business address of the breeder and of the facility where the dog was born.

(f) If the breeder holds a license issued by the United States Department of Agriculture, the breeder’s federal identification number.

(g) The retail price of the dog.

(h) Any congenital disorder or hereditary diseases in the parents of the dog known to the pet dealer.

(i) If the dog is being sold with the representation that the dog qualifies for registration with a pedigree organization:

(A) The name and registration numbers of the parents of the dog; and

(B) The name and address of the pedigree organization with which the parents of the dog are registered.

(j) If the dog has previously been sold by the retail pet store and returned by the purchaser, the reason for the return.

(k) A statement in substantially the following form, with the applicable provision number circled:

______________________________________________________________________________

The facility in which this dog was born has produced:

1. 0 to 2 litters during the one-year period preceding the day this dog was born.

2. 3 to 10 litters during the one-year period preceding the day this dog was born.

3. 11 to 39 litters during the one-year period preceding the day this dog was born.

4. 40 or more litters during the one-year period preceding the day this dog was born.

______________________________________________________________________________ [2009 c.297 §5]

646A.077 Qualification for full refund; replacement dog; reimbursement for cost of veterinary care; exceptions. (1) As used in this section:

(a) “Litter” means one or more dogs, sold individually or together, that are all or part of a group of dogs born to the same mother at the same time.

(b) “Pet dealer” means, except as provided in paragraph (c) of this subsection, a person that sells five or more litters of dogs during a one-year period.

(2) Except as otherwise provided in this section, a pet dealer shall provide the purchaser of a dog that complies with subsection (3) of this section with a full refund of the purchase price for the dog if:

(a) No later than 15 days after purchasing the dog from the pet dealer the purchaser has the dog examined by a veterinarian and the examination reveals that the dog is diseased; or

(b) No later than one year after purchasing the dog from the pet dealer the purchaser has the dog examined by a veterinarian and the examination reveals that the dog has a congenital disorder that significantly limits the dog’s quality of life.

(3) To qualify for a refund under this section, the purchaser, no later than four business days after the veterinary examination that revealed the disease or disorder, must:

(a) Return the dog to the pet dealer;

(b) Provide the pet dealer with a dated written statement by the examining veterinarian that the dog has a disease or has a congenital defect; and

(4) Upon mutual agreement of the purchaser and pet dealer, the purchaser may accept a replacement dog instead of a refund.

(5) A purchaser that complies with subsection (2) of this section may, instead of obtaining a refund, require that the pet dealer reimburse the purchaser for the cost of veterinary care provided in connection with the disease or congenital disorder described in subsection (2) of this section. The duty of the pet dealer to reimburse the purchaser for the cost of veterinary care shall be limited to the purchase price of the dog. A purchaser that agrees to accept reimbursement under this subsection waives any other claim against the pet dealer for reimbursement of the cost of veterinary care for the dog.

(6) Notwithstanding subsections (1) to (5) of this section, a pet dealer is not required to refund the purchase price for a dog, provide a replacement dog or reimburse the purchaser for veterinary care if the pet dealer:

(a) At the time of sale made a clear and conspicuous disclosure in writing, initialed or signed by the purchaser, that disclosed the disease or disorder; or

(b) Had the dog examined by a veterinarian not more than 14 days prior to the date of sale and the examination did not disclose the disease or congenital disorder. [2009 c.297 §4]

(Miscellaneous Sales Transactions)

646A.080 Sale of novelty item containing mercury; penalty. (1) A person may not sell or offer for sale a novelty item that contains encapsulated liquid mercury.

(2) Upon notification to the Department of Environmental Quality by any person that a novelty item for sale in the state contains encapsulated liquid mercury, the department shall notify persons identified as selling the novelty item of the prohibition on the sale of such items.

(3) The department may impose a penalty as provided in ORS 459.995 if a person continues to sell a novelty item that contains encapsulated liquid mercury after notification of the prohibition on the sale of such items. [Formerly 646.845]

646A.081 Prohibition on sale or installation of mercury vapor outdoor lighting fixtures. (1) As used in this section:

(a) “Mercury vapor lighting fixture” means an artificial illumination device that produces a high-intensity discharge of light by passing electricity through mercury vapor.

(b) “Outdoor lighting fixture” has the meaning given that term in ORS 757.765.

(2) A person may not sell an outdoor lighting fixture that is a mercury vapor lighting fixture.

(3) A person may not install a mercury vapor lighting fixture outdoors. This subsection does not apply to the reinstallation of an existing fixture after servicing or repair.

(4) State moneys may not be expended for the installation or reinstallation of outdoor lighting fixtures that are mercury vapor lighting fixtures. [2009 c.588 §3]

646A.082 Floral retail sales; disclosure of principal place of business; enforcement; penalty. (1) Any person engaging in floral retail sales shall disclose the person’s principal place of business in any written communications sent to customers, listings, advertising or websites that provide information about the person’s floral retail sales activities.

646A.085 Sale of rights by distributor to exhibit motion picture without first giving exhibitor opportunity to view motion picture prohibited; attorney fees. (1) As used in this section:

(a) “Distributor” means any person engaged in the business of distributing or supplying motion pictures to exhibitors by rental, sales, license or any other agreement to sell rights to exhibit a motion picture.

(b) “Exhibitor” means any person engaged in the business of operating one or more theaters in which motion pictures are exhibited to the public for a charge.

(c) “Market” means any geographical area in this state for which a distributor solicits exhibitors to compete, by bidding or other negotiations, for the rights to exhibit a motion picture.

(2) No distributor shall sell rights to exhibit a motion picture in this state unless each exhibitor solicited by the distributor for an offer to exhibit the motion picture is first allowed a reasonable opportunity to view the motion picture within the state. Any waiver of this subsection is void and unenforceable.

(3) Nothing in this section applies to any form of solicitation of offers for, negotiation concerning or sale of rights to exhibit a motion picture:

(a) That has been exhibited in this state before October 3, 1979.

(b) In a market where the motion picture has been exhibited for one week or more.

(4) An exhibitor may enforce this section by bringing an action in the appropriate court of this state. In enforcing this section a court may:

(a) Issue an injunction to prohibit violation of this section; and

(b) Award an exhibitor any actual damages arising from violation of this section.

(5) In any suit under subsection (4) of this section, the court shall award reasonable attorney fees at trial and on appeal to the prevailing party. [Formerly 646.868]

646A.090 Offer to sell or lease motor vehicle under retail installment contract or lease agreement; return of items if lender does not approve loan; charges for use of vehicle; exceptions. (1) As used in this section:

(a) “Buyer” means a person that purchases or leases a motor vehicle.

(b) “Final approval of funding” means a lender’s irrevocable agreement to purchase a retail installment contract or lease agreement from a seller according to the exact terms that the seller and buyer have negotiated.

(d) “Motor vehicle” means a motor vehicle, as defined in ORS 801.360, that is sold or leased in this state for personal, family or household purposes.

(e) “Seller” means a person that holds a current, valid vehicle dealer certificate issued under ORS 822.020 or renewed under ORS 822.040.

(2) A seller may offer to sell or lease a motor vehicle to a buyer or prospective buyer under a retail installment contract or lease agreement that is subject to a lender’s agreement to purchase the retail installment contract or lease agreement into which the buyer enters.

(3) In any transaction described in subsection (2) of this section:

(a) If, within 14 days after a buyer takes possession of a motor vehicle, a lender does not agree to purchase a retail installment contract or lease agreement on the exact terms that the seller and the buyer negotiate and the seller does not receive final approval of funding from the lender, the seller shall return to the buyer all items of value the seller received from the buyer as part of the transaction; and

(b) If the seller has accepted a trade-in motor vehicle from the buyer, the seller may not sell or lease the buyer’s trade-in motor vehicle before the seller receives final approval of funding from the lender.

(4) In any transaction described in subsection (2) of this section, if the buyer has accepted a motor vehicle from the seller that is subject to a retail installment contract or lease agreement, and a lender does not agree to purchase the retail installment contract or lease agreement on the exact terms the seller and the buyer negotiated, the buyer shall return to the seller all items of value the buyer received from the seller as part of the transaction. The seller may charge the buyer only for amounts that the retail installment contract or lease agreement provides in writing that the seller may charge. The retail installment contract or lease agreement may provide only for these amounts:

(a) The fair market value of damage to, excessive wear and tear on or loss of the motor vehicle that occurs between the date the buyer takes possession of the motor vehicle and the date the buyer returns the motor vehicle to the seller’s custody; and

(b) If, within 14 days after the date on which the buyer takes possession of the motor vehicle, the seller sends notice to the buyer by first class mail or written electronic communication that a lender has not agreed to purchase the retail installment contract or lease agreement, a reasonable charge per mile for the use of the motor vehicle. The charge may not exceed the rate per mile allowed under federal law as a deduction for federal income tax purposes for an ordinary and necessary business expense.

(5) If the buyer makes a reasonable attempt to return the vehicle within five days after the seller sends a notice under subsection (4)(b) of this section, but the seller is not available to accept the return, the seller may not charge the buyer under subsection (4)(b) of this section.

(6)(a) Subject to paragraph (b) of this subsection, a seller has an affirmative defense to a claim or charge of violating subsection (3)(a) of this section by showing that the buyer failed to return the motor vehicle after the seller sent the notice described in subsection (4)(b) of this section.

(b) A seller shall retain proof of the date on which the seller sent to the buyer the notice described in subsection (4)(b) of this section. [Formerly 646.877; 2017 c.241 §1]

646A.092 Advertisements for sale or lease of motor vehicle; exceptions. (1) As used in this section:

(a) “Advertisement” means any public notice or announcement of a motor vehicle for sale or lease.

(b) “Motor vehicle” has the meaning given that term in ORS 801.360, except that “motor vehicle” does not include commercial vehicles, as defined in ORS 801.210, or commercial motor vehicles, as defined in ORS 801.208.

(d) “Trade publication” means a motor vehicle price guide that is nationally recognized and distributed.

(2) An advertisement for the sale or lease of a motor vehicle may not claim that a seller will value property being offered in exchange for payment toward the motor vehicle:

(a) At a specific amount;

(b) Within a range of specified amounts;

(d) As a multiple of or an increase in trade-in allowance.

(3) This section does not apply to an advertisement for a used motor vehicle that:

(a) References a value cited in a trade publication that is not published by the seller and that is readily accessible by the public;

(b) Clearly and conspicuously discloses the name of the trade publication being referenced;

(c) Clearly and conspicuously includes the following disclaimer in at least 10-point bold type: “THE VALUE OF USED MOTOR VEHICLES VARIES WITH MILEAGE, USAGE, INCLUDED ACCESSORIES AND CONDITION. BOOK VALUES SHOULD BE CONSIDERED ESTIMATES ONLY.”; and

(d) If the publisher of the trade publication publishes and distributes separate issues for specific geographic regions, references the value cited for the geographic region in which the motor vehicle is being offered for sale. [2011 c.57 §1]

646A.093 Disclosures for handling and shipping consumer goods required in advertisements, offers and sales; penalty. (1) As used in this section:

(a) “Advertise” means to communicate about a consumer good by newspaper, radio, television, handbill, placard or other print, broadcast or electronic medium within this state for the purpose of selling the consumer good.

(b) “Consumer goods” means goods that an individual uses or buys for use primarily for personal, family or household purposes.

(2) A person that offers for sale, sells or advertises consumer goods that the person will ship directly to a consumer in this state shall clearly disclose during the sales transaction the charges, if any, that the consumer must pay for handling and shipping the consumer goods.

(3) A person that fails to disclose the handling and shipping charges for consumer goods in a transaction described in subsection (2) of this section commits an unlawful practice under ORS 646.607 that is subject to enforcement under ORS 646.632. [2013 c.433 §1]

646A.095 Disclosure required when purchaser of product offered technical support through information delivery system. (1) Whenever the purchaser of a product sold at retail is offered ongoing technical support or service relating to the operation or use of the product, and the support or service is offered exclusively or in part through an information delivery system, the product or package of the product shall contain, in clear view to the purchaser before the product is opened, a statement disclosing that the technical support or service is provided through an information delivery system and listing the cost per minute of the support or service. The manufacturer of the product is responsible for providing the statement required under this subsection.

(2) As used in this section:

(a) “Information delivery system” means any telephone-recorded messages, interactive program or other information services that are provided on a pay-per-call basis through an exclusive telephone number prefix or service access code; and

(b) “Manufacturer” means a person who manufactures a product described in subsection (1) of this section. When the product is distributed or sold under a name other than that of the actual manufacturer of the product, the term “manufacturer” includes any person under whose name the product is distributed or sold. [Formerly 646.871]

646A.097 Payment of sales commissions following termination of contract between sales representative and principal; definitions; civil action. (1) As used in this section:

(a) “Commission” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales or as a specified amount per order or per sale.

(b) “Principal” means a person who does not have a permanent or fixed place of business in this state and who:

(A) Manufactures, produces, imports or distributes a tangible product for wholesale;

(B) Contracts with a sales representative to solicit orders for the product; and

(A) Contracts with a principal to solicit wholesale orders;

(B) Is compensated, in whole or in part, by commission;

(D) Does not sell or take orders for the sale of products to the ultimate consumer.

(2) When a contract between a sales representative and a principal is terminated for any reason, the principal shall pay the sales representative all commissions accrued under the contract to the sales representative within 14 days after the effective date of the termination.

(3) A principal who fails to comply with the provisions of subsection (2) of this section is liable to the sales representative in a civil action for:

(a) All amounts due the sales representative plus interest on the amount due at the rate of nine percent per annum until paid; and

(b) Treble damages, if the failure to comply with the provisions of subsection (2) of this section is willful.

(4) The court shall award court costs and attorney fees actually and reasonably incurred by the prevailing party in an action to recover amounts, interest or damages due under subsection (3) of this section.

(5) A nonresident principal who contracts with a sales representative to solicit orders in this state is subject to the jurisdiction of the courts of this state to the extent specified in ORS 14.030.

(6) Any action commenced pursuant to this section must be commenced in the county in which the plaintiff resides at the time the action is commenced or in the county where the cause of action arose.

(7) Nothing in this section shall invalidate or restrict any other or any additional right or remedy available to a sales representative, or preclude a sales representative from seeking to recover in one action all claims against a principal.

(8) A provision in any contract between a sales representative and a principal purporting to waive any provision of this section, whether by expressed waiver or by a contract subject to the laws of another state, shall be void. [Formerly 646.878]

(Going Out of Business Sales)

646A.100 Definitions for ORS 646A.100 to 646A.110. As used in ORS 646A.100 to 646A.110:

(1) “Affiliated business” means a business or business location that is directly or indirectly controlled by, or under common control with, the business location listed in a notice of intent or that has a common ownership interest in the merchandise to be sold at the business location listed in the notice of intent.

(2)(a) “Going out of business sale” means a sale or auction advertised or held out to the public as the disposal of merchandise in anticipation of cessation of business, including but not limited to a sale or auction advertised or held out to the public as a “going out of business sale,” a “closing out sale,” a “quitting business sale,” a “loss of lease sale,” a “must vacate sale,” a “liquidation sale,” a “bankruptcy sale,” a “sale to prevent bankruptcy” or another description that suggests a price reduction in anticipation of the imminent closure of the business.

(b) “Going out of business sale” does not include a sale conducted by a bankruptcy trustee or a court-appointed receiver.

(3) “Merchandise” means goods, wares or other property or services.

(4) “Notice of intent” means a public notice with the information specified in ORS 646A.104 from a person that intends to conduct a going out of business sale.

(5) “Person” has the meaning given that term in ORS 646.605. [2007 c.820 §1; 2015 c.277 §1]

646A.102 Notice of intent to conduct going out of business sale; display and filing; exceptions; prohibited activities. (1) Except as provided in subsection (3) of this section, a person may not sell, offer for sale or advertise for sale merchandise at a going out of business sale unless the person displays a notice of intent at the business location where the person intends to conduct the going out of business sale.

(2) A person must display the notice of intent in a prominent place on the premises of the business location where the person is conducting the going out of business sale.

(3) If a person is conducting a going out of business sale as part of a bankruptcy, receivership or other court-ordered action,

the person, in lieu of displaying a notice of intent, shall display the court order or judgment that ordered the sale in a prominent place on the premises of the business location where the person is conducting the going out of business sale.

(4) A person may not:

(a) Conduct a going out of business sale for more than 90 days from the beginning date of the sale that is listed on the notice of intent.

(b) Continue to conduct a going out of business sale beyond the ending date that is listed on the notice of intent.

(5) A person who has conducted a going out of business sale may not conduct another going out of business sale for a period of one year after the ending date of the sale that is listed on the notice of intent. [2007 c.820 §2; 2015 c.277 §2]

646A.104 Information required in notice of intent. A notice of intent must include:

(1) The name, address, telephone number and signature of the owner of the merchandise that will be sold at the going out of business sale. If the owner is a corporation, trust, unincorporated association, partnership or other legal entity, the notice of intent must include the signature and title of an officer of the entity.

(2) The name, address, telephone number and signature of the person who will be in charge of and responsible for conducting the sale.

(3) The descriptive name, business location and beginning and ending dates of the sale.

(4) The certificate and official stamp of a notary public who, in accordance with ORS 194.280, acknowledges each of the signatures described in subsections (1) and (2) of this section. [2007 c.820 §3; 2015 c.277 §3]

646A.106 Circumstances in which going out of business sale prohibited. A person may not conduct a going out of business sale if a person who has an ownership interest in the business or in the merchandise to be sold is subject to a court order resulting from a civil enforcement action under ORS 646.608 or 646A.100 to 646A.110. [2007 c.820 §4]

646A.108 Prohibited conduct. (1) A person that intends to conduct a going out of business sale may not transfer merchandise from an affiliated business or business location to the location of the sale.

(2) A person, after displaying a notice of intent at a business location where the person intends to conduct a going out of business sale, may not buy or order merchandise, take merchandise on consignment or receive a transfer of merchandise from an affiliated business or business location for the purpose of selling the merchandise at the sale or sell the merchandise in a going out of business sale. [2007 c.820 §5; 2015 c.277 §4]

646A.110 Applicability of ORS 646A.100 to 646A.110 and 646A.112. (1) ORS 646.608 (1)(ddd), 646A.100 to 646A.110 and 646A.112 apply only to persons who engage in the retail sale of merchandise in the regular course of their business.

(2) ORS 646.608 (1)(ddd), 646A.100 to 646A.110 and 646A.112 do not apply to public officials acting within the scope of their duties as public officials. [2007 c.820 §6; 2009 c.170 §2; 2009 c.604 §26]

646A.112 Injunction of sham sale; evidence; attorney fees; defense; definitions. (1) As used in this section:

(a) “Appropriate court” has the meaning given that term in ORS 646.605.

(b) “Relevant market” means:

(A) A product market that consists of products or services that a consumer would regard as interchangeable or substitutable by reason of the products’ or services’ characteristics, prices and intended use; or

(B) A geographic market that consists of the area in which the persons concerned are involved in the supply of a product or service and in which the conditions of competition are sufficiently homogenous.

(c) “Sham sale” means a going out of business sale, as defined in ORS 646A.100, conducted with the intent to continue the same or a similar business in the same location or at a location within the same relevant market but that is a sale that is represented as being conducted due to a cessation of business.

(2) A person may bring an action in an appropriate court to enjoin another person in the same relevant market from conducting a sham sale if the person reasonably believes the other person is conducting a sham sale. The court may provide such equitable relief as it deems necessary or proper.

(3) In an action brought by a person under this section, the court may award reasonable attorney fees to the person.

(4) It is prima facie evidence that a person alleged to be conducting a sham sale has the intent to continue the same or a similar business if:

(a) The person regularly receives additional inventory during the sham sale or, immediately prior to the sham sale, receives additional inventory that is not regularly delivered;

(b) The sham sale exceeds 90 days; or

(c) The same or a similar business that consists of inventory remaining from the sham sale and that has the same principal ownership resumes business in the same relevant market within 12 months from the cessation of the business.

(5) It is an affirmative defense to an action brought under this section that, during an alleged sham sale, the person no longer needed to go out of business and immediately canceled the alleged sham sale. [2007 c.820 §7]

646A.115 Software prohibited that interferes with sale of admission tickets to entertainment events; unlawful practice. (1) As used in this section:

(a) “Admission ticket” means evidence of a purchaser’s right of entry to a venue or an entertainment event.

(b) “Entertainment event” means a performance, recreation, amusement, diversion, spectacle, show or similar event including, but not limited to, a theatrical or musical performance, concert, film, game, ride or sporting event.

(c) “Operator” means a person that owns, operates or controls a venue or that produces or promotes an entertainment event, or the person’s agent or employee.

(d) “Resale” means a sale other than an operator’s initial sale of an admission ticket for a venue that is located in or an entertainment event that occurs in this state, irrespective of the location in which the sale occurs or the means by which a reseller solicits or advertises the sale or delivers or receives payment for the admission ticket.

(e) “Reseller” means a person other than an operator that conducts a resale.

(2) A person may not intentionally sell or use software, the purpose of which is to circumvent, thwart, interfere with or evade a control or measure, including a security measure or an access control system, that an operator or reseller establishes or uses to ensure an equitable distribution, sale or resale of admission tickets for an entertainment event.

(3) Violation of subsection (2) of this section is an unlawful practice under ORS 646.608 that is subject to an action under ORS 646.632 and 646.638. [2009 c.310 §1]

RENTAL AND LEASE AGREEMENTS

(Lease-Purchase Agreements)

646A.120 Definitions for ORS 646A.120 to 646A.134. As used in ORS 646A.120 to 646A.134:

(1) “Advertisement” means a commercial message in any medium that aids, promotes or assists, directly or indirectly, a lease-purchase agreement.

(2) “Cash price” means the price at which the lessor would have sold the property to the consumer for cash on the date of the lease-purchase agreement.

(3) “Consumer” means an individual who rents personal property under a lease-purchase agreement to be used primarily for personal, family or household purposes.

(4) “Consummation” means the time a consumer becomes contractually obligated on a lease-purchase agreement.

(5) “Lease-purchase agreement” means an agreement for the use of personal property by an individual for personal, family or household purposes, for an initial period of four months or less, that is automatically renewable with each payment after the initial period, but does not obligate or require the consumer to continue leasing or using the property beyond the initial period, and that permits the consumer to become the owner of the property.

(6) “Lessor” means a person who regularly provides the use of property through lease-purchase agreements and to whom lease payments are initially payable on the face of the lease-purchase agreement. [Formerly 646.245]

646A.122 Applicability of ORS 646A.120 to 646A.134. (1) Lease-purchase agreements that comply with ORS 646A.120 to 646A.134 are not governed by laws relating to:

(a) A security interest under ORS chapter 79.

(b) A retail installment contract under ORS 83.010 to 83.190.

(2) ORS 646A.120 to 646A.134 do not apply to the following:

(a) Lease-purchase agreements primarily for business, commercial or agricultural purposes, or those made with governmental agencies or instrumentalities or with organizations;

(b) A lease of a safe deposit box;

(c) A lease or bailment of personal property which is incidental to the lease of real property, and which provides that the consumer has no option to purchase the leased property; or

(d) A lease of a motor vehicle. [Formerly 646.247]

646A.124 General disclosure requirements. (1) The lessor shall disclose to the consumer the information required by ORS 646A.126. In a transaction involving more than one lessor, only one lessor need make the disclosures, but all lessors shall be bound by the disclosures.

(2) The disclosures shall be made at or before consummation of the lease-purchase agreement.

(3) The disclosures shall be made clearly and conspicuously in writing and a copy of the lease-purchase agreement shall be provided to the consumer. The disclosures required under ORS 646A.126 shall be made on the face of the contract above the line for the consumer’s signature.

(4) If a disclosure becomes inaccurate as the result of any act, occurrence or agreement by the consumer after delivery of the required disclosures, the resulting inaccuracy is not a violation of ORS 646A.120 to 646A.134.

(5) If any portion of the transaction is conducted in any language other than English, the disclosures required under ORS 646A.120 to 646A.134 shall be in the language other than English. This subsection does not apply if any portion of the transaction is conducted through an interpreter supplied by the lessee. [Formerly 646.249]

646A.126 Specific disclosure requirements. For each lease-purchase agreement, the lessor shall disclose in the agreement the following items, as applicable:

(1) Whether the periodic payment is weekly, monthly or otherwise, the dollar amount of each payment and the total number and total dollar amount of all periodic payments necessary to acquire ownership of the property;

(2) A statement that the consumer will not own the property until the consumer has made the total payment necessary to acquire ownership;

(3) A statement advising the consumer whether the consumer is liable for loss or damage to the property, and, if so, the maximum amount for which the consumer is liable;

(4) A brief description of the leased property, sufficient to identify the property to the consumer and the lessor, including an identification number, if applicable, and a statement indicating whether the property is new or used. A statement that indicates new property is used is not a violation of ORS 646A.120 to 646A.134;

(5) A statement of the cash price of the property. Where one agreement involves a lease of two or more items as a set, a statement of the aggregate cash price of all items shall satisfy this requirement;

(6) The total of initial payments paid or required at or before consummation of the agreement or delivery of the property, whichever is later;

(7) A statement that the total amount of payments does not include other charges, such as late payment, default, pickup and reinstatement fees. Fees listed in this subsection shall be disclosed separately in the agreement;

(8) A statement clearly summarizing the terms of the consumer’s option to purchase, including a statement that the consumer has the right to exercise an early purchase option, and the price, formula or method for determining the price at which the property may be so purchased;

(9) A statement identifying the party responsible for maintaining or servicing the property while it is being leased, together with a description of that responsibility, and a statement that if any part of a manufacturer’s express warranty covers the lease property at the time the consumer acquires ownership of the property, it shall be transferred to the consumer, if allowed by the terms of the warranty;

(10) The date of the transaction and the identities of the lessor and consumer;

(11) A statement that the consumer may terminate the agreement without penalty by voluntarily surrendering or returning the property in good repair, reasonable wear and tear excepted, upon expiration of any lease term along with any past due rental payments; and

(12) Notice of the right to reinstate an agreement as provided in ORS 646A.120 to 646A.134. [Formerly 646.251]

646A.128 Provisions prohibited in lease-purchase agreements. A lease-purchase agreement may not contain:

(1) A confession of judgment;

(2) A negotiable instrument;

(3) A security interest or any other claim of a property interest in any goods except those goods delivered by the lessor pursuant to the lease-purchase agreement;

(4) A wage assignment;

(5) A waiver by the consumer of claims or defenses;

(6) A provision authorizing the lessor or a person acting on the lessor’s behalf to enter upon the consumer’s premises without the permission of the consumer or to commit any breach of the peace in the repossession of goods;

(7) A provision requiring the purchase of insurance or liability damage waiver from the lessor for property that is the subject of the lease-purchase agreement;

(8) A provision that mere failure to return property constitutes probable cause for a criminal action;

(9) A provision requiring the lessee to make a payment in addition to regular lease payments in order to acquire ownership of the leased property, or a provision requiring the lessee to make lease payments totaling more than the dollar amount necessary to acquire ownership, as disclosed pursuant to ORS 646A.126;

(10) A provision requiring a late charge or reinstatement fee unless a periodic payment is late more than two days on a weekly agreement, or five days on a monthly agreement;

(11) A late charge or reinstatement fee in excess of $5; or

(12) More than one late charge or reinstatement fee on any one periodic payment regardless of the period of time during which it remains in default. [Formerly 646.253]

646A.130 Reinstatement of lease-purchase agreement by consumer; receipt for each payment. (1) A consumer who fails to make a timely rental payment may reinstate the agreement, without losing any rights or options which exist under the agreement, by the payment of:

(a) All past due rental charges;

(b) If the property has been picked up, the reasonable costs of pickup and redelivery; and

(c) Any applicable late fee, within five days of the renewal date if the consumer pays monthly, or within two days of the renewal date if the consumer pays more frequently than monthly.

(2) In the case of a consumer who has paid less than two-thirds of the total of payments necessary to acquire ownership and where the consumer has returned or voluntarily surrendered the property, other than through judicial process, during the applicable reinstatement period set forth in subsection (1) of this section, the consumer may reinstate the agreement during a period of not less than 21 days after the date of the return of the property.

(3) In the case of a consumer who has paid two-thirds or more of the total of payments necessary to acquire ownership, and where the consumer has returned or voluntarily surrendered the property, other than through judicial process, during the applicable period set forth in subsection (1) of this section, the consumer may reinstate the agreement during a period of not less than 30 days after the date of the return of the property.

(4) Nothing in this section shall prevent a lessor from attempting to repossess property during the reinstatement period, but such a repossession shall not affect the consumer’s right to reinstate. Upon reinstatement, the lessor shall provide the consumer with the same property or substitute property of comparable quality and condition.

(5) A lessor shall provide the consumer with a written receipt for each payment made by cash or money order. [Formerly 646.255]

646A.132 Renegotiation or extension of lease-purchase agreement. (1) A renegotiation shall occur when an existing lease-purchase agreement is satisfied and replaced by a new agreement undertaken by the same lessor and consumer. A renegotiation shall be considered a new agreement requiring new disclosures. A renegotiation shall not include:

(a) The addition or return of property in a multiple item agreement or the substitution of the lease property, if in either case the average payment allocable to a payment period is not changed by more than 10 percent;

(b) A deferral or extension of one or more periodic payments, or portions of a periodic payment;

(d) A lease or agreement involved in a court proceeding.

(2) No disclosures are required for any extension of a lease-purchase agreement. [Formerly 646.257]

646A.134 Disclosures required in advertisement for lease-purchase agreements. (1) If an advertisement for a lease-purchase agreement refers to or states the dollar amount of any payment and the right to acquire ownership for any one specific item, the advertisement shall also clearly and conspicuously state the following items, as applicable:

(a) That the transaction advertised is a lease-purchase agreement;

(b) The total of payments necessary to acquire ownership; and

(2) Any owner or personnel of any medium in which an advertisement appears or through which it is disseminated shall not be liable under this section.

(3) The provisions of subsection (1) of this section shall not apply to an advertisement which does not refer to or state the amount of any payment, or which is published in the yellow pages of a telephone directory or in any similar directory of business.

(4) Every item displayed or offered under a lease-purchase agreement shall have clearly and conspicuously indicated in Arabic numerals, so as to be readable and understandable by visual inspection, each of the following stamped upon or affixed to the item:

(a) The cash price of the item;

(b) The amount of the periodic payment; and

(Collision Damage Waivers

in Vehicle Rentals)

646A.140 Definitions for ORS 646A.140 and 646A.142. As used in this section and ORS 646A.142:

(1) “Authorized driver” means:

(a) The person renting the vehicle;

(b) The spouse of the person renting the vehicle, if the spouse is a licensed driver and meets any minimum age requirements contained in the rental agreement;

(c) The employer or coworker of the person renting the vehicle if the employer or coworker is engaged in a business activity with the person renting the vehicle and the employer or coworker meets any minimum age requirements contained in the rental agreement;

(d) Any person driving the vehicle during an emergency; and

(e) Any person expressly listed by the rental company on the rental agreement as an authorized driver.

(2) “Collision damage waiver” means an agreement between the renter and the rental company in which the company waives its right to impose a financial obligation on the renter or authorized driver if the vehicle is returned with physical damage.

(3) “Damage” means any damage or loss to the rented vehicle, including loss of use and any costs and expenses incident to the damage or loss.

(4) “Private passenger automobile” or “vehicle” means a motor vehicle designed primarily for transportation of persons.

(5) “Rental agreement” means any written agreement setting forth the terms and conditions governing the use of a private passenger automobile provided by a rental company.

(6) “Rental company” means any person engaged in the business of renting private passenger automobiles to the public.

(7) “Renter” means any person or organization obtaining the use of a private passenger automobile from a rental company under the terms of a rental agreement. [Formerly 646.857]

646A.142 Rental vehicle collision damage waiver notice. (1) Every auto rental company doing business in the State of Oregon that offers collision damage waivers shall post a sign approved by the Department of Consumer and Business Services which states “OUR CONTRACTS OFFER OPTIONAL COLLISION DAMAGE WAIVERS AT AN ADDITIONAL COST.”

(2)(a) No rental company shall sell or offer to sell to a renter a collision damage waiver as part of a rental agreement unless the renter is provided the following written notice in at least 10-point type:

______________________________________________________________________________

NOTICE: Our contracts offer, for an additional charge, a collision damage waiver to cover your responsibility for damage to the vehicle. Before deciding whether or not to purchase the collision damage waiver, you may wish to determine whether your own vehicle insurance affords you coverage for damage to the rental vehicle and the amount of the deductible under your own insurance coverage. The purchase of this collision damage waiver is not mandatory and may be waived.

______________________________________________________________________________

(b) The notice required by this subsection shall either appear at the top of the rental agreement or shall be on a separate piece of paper attached to the top of the agreement. [Formerly 646.859]

SERVICE CONTRACTS

646A.150 Applicability of ORS 646A.150 to 646A.172. (1) ORS 646A.150 to 646A.172:

(a) Create a legal framework within which service contracts may be sold in this state;

(b) Encourage innovation in the marketing and development of more economical and effective means of providing services under service contracts, while placing the risk of innovation on the obligors rather than on consumers; and

(c) Permit and encourage fair and effective competition among different systems of providing and paying for service contracts.

(2) ORS 646A.150 to 646A.172 do not apply to:

(a) Warranties; or

(b) Maintenance agreements. [Formerly 646.263]

646A.152 Definitions for ORS 646A.150 to 646A.172. As used in ORS 646A.150 to 646A.172:

(1) “Maintenance agreement” means a contract of limited duration that provides for scheduled maintenance only.

(2)(a) “Obligor” means a person that is contractually obligated to the service contract holder to provide service under a service contract.

(b) “Obligor” does not include a person that has a home services contractor license, as described in ORS 701.501, and offers or provides services under a home service agreement, as defined in ORS 731.164.

(3) “Person” means an individual, partnership, corporation, incorporated or unincorporated association, joint stock company, reciprocal, syndicate or any similar entity or combination of entities acting in concert.

(4) “Service contract” is a contract described in ORS 646A.154.

(5) “Service contract holder” or “contract holder” means a person that purchases or holds a service contract.

(6) “Service contract seller” means a person that markets, sells or offers to sell a service contract.

(7) “Warranty” means a warranty that a person that manufactures, imports or sells property or services makes without charge, that is not negotiated or separated from the sale of the product and is incidental to the sale of the product, and that guarantees indemnity for defective parts, mechanical or electrical breakdown, labor or other remedial measures, such as repair or replacement of the property or repetition of services. [Formerly 646.265; 2013 c.527 §1]

646A.154 Service contract defined; registration; proof of financial stability; bond; action; rules; applicability of Insurance Code. (1)(a) For the purposes of this section, a service contract is a contract or agreement to perform or indemnify for a specific duration the repair, replacement or maintenance of property for operational or structural failure that results from a defect in materials, workmanship or normal wear and tear, with or without an additional incidental provision to pay indemnity under limited circumstances, including but not limited to rental and emergency road service. A service contract may also provide for:

(A) Repairing, replacing or maintaining property for damage that results from lightning, power surges or accidental damage from handling;

(B) Repairing or replacing tires or wheels on a motor vehicle damaged as a result of contacting a road hazard;

(C) Removing dents, dings, creases or other damage on a motor vehicle that a process of paintless dent removal can repair without affecting an existing paint finish or replacing vehicle body panels, sanding, bonding or repainting;

(D) Repairing chips or cracks in motor vehicle windshields or replacing motor vehicle windshields because of damage that results from road hazards;

(E) Replacing motor vehicle keys or key fobs that become inoperable or that are lost or stolen;

(F) Paying specified incidental costs that result from the failure of a vehicle protection product, as defined in ORS 646A.430, to perform according to the specifications for the vehicle protection product; and

(G) Other services the Director of the Department of Consumer and Business Services specifies by rule, to the extent that the services are similar to services described in this paragraph.

(b) For the purposes of this section, a service contract does not include coverage for repairing damage to or replacing components of a motor vehicle’s interior or exterior paint or finish unless the service contract provides the services described in this paragraph in connection with the sale of a vehicle protection product, as defined in ORS 646A.430.

(d) For purposes of this section, a service contract does not include insurance policies that insurers issue under the Insurance Code or maintenance agreements.

(2) An obligor may not issue, sell or offer for sale a service contract in this state unless the obligor has complied with the provisions of this section and ORS 646A.156 and 646A.158.

(3) All obligors of service contracts issued, sold or covering property located in this state shall file a registration with the Department of Consumer and Business Services on a form, at a fee and at a frequency that the director specifies under ORS 646A.168.

(4) An obligor shall keep accurate accounts, books and records concerning transactions that involve service contracts.

(5) Except as provided in subsection (6) of this section, to ensure the faithful performance of an obligor’s obligations to the obligor’s contract holders, each obligor shall provide the director with one of the following as proof of financial stability:

(a) A copy of the obligor’s most recent Form 10-K that the obligor or the obligor’s parent company, if the obligor consolidates financial statements with a parent company, filed with the Securities and Exchange Commission. A Form 10-K that the obligor or the obligor’s parent company filed within the last calendar year must show that the obligor or the obligor’s parent company has a net worth of at least $100 million. If the obligor’s parent company files the Form 10-K to meet the obligor’s financial stability requirement, the parent company shall agree to guarantee the obligations the obligor has in service contracts the obligor sells in this state.

(b) Evidence of a reimbursement insurance policy described in ORS 742.390 that an authorized insurer issues to the obligor and that insures all service contracts the obligor sells.

(6)(a) An obligor of a home service agreement as defined in ORS 731.164 shall file with the director a surety bond executed to the State of Oregon in the sum of $25,000. The surety bond must be issued by a surety company authorized to do business in this state. An obligor of a home service agreement does not need to file proof of financial stability under subsection (5) of this section.

(b) The surety bond described in paragraph (a) of this subsection must be issued on the condition that the obligor comply with all provisions of ORS 646A.150 to 646A.172 and fully perform on all contracts or agreements into which the obligor enters.

(c) The surety bond must be continuous until canceled and must remain in full force and unimpaired at all times to comply with this section. The surety shall give the director at least 30 days’ written notice by registered or certified mail before the surety cancels or terminates the surety’s liability under the bond.

(d) Any person who suffers damage as a result of a violation of any provision of ORS 646A.150 to 646A.172 or any rule the director adopts pursuant to ORS 646A.150 to 646A.172 has a right of action under the bond. The state or a person with a right of action may bring an action under the bond by filing a complaint in a court of competent jurisdiction not later than one year after the surety bond is canceled or terminated. The court may award the prevailing plaintiff reasonable attorney fees and costs in an action under the bond.

(e) The aggregate liability of the surety may not exceed the principal sum of the bond.

(7) Filing requirements are as follows:

(a) The obligor shall file with the director proof of financial stability or a surety bond as required by subsection (5) or (6) of this section.

(b) The director by rule may specify the procedure for filing the proof of financial stability or the surety bond.

(c) A person may not file or cause to be filed with the director any article, certificate, report, statement, application or any other information required or permitted to be filed under this subsection that the person knows is false or misleading in any material respect.

(8) Service contract sellers and employees of service contract sellers that market, sell or offer to sell service contracts for obligors who comply with this section and ORS 646A.156 and 646A.158 are exempt from the requirements of the Insurance Code including, but not limited to, the requirement to belong to the Oregon Insurance Guaranty Association.

(9) Obligors that comply with ORS 646A.156 and 646A.158 do not need to comply with the Insurance Code including, but not limited to, the requirement to belong to the Oregon Insurance Guaranty Association.

(10) If a service contract seller is not the same person as the obligor under the service contract, the service contract seller shall remit the agreed-upon consumer purchase price of the service contract to the obligor within 30 days after selling the service contract or in accordance with terms and conditions to which the service contract seller and obligor agree in writing. [Formerly 646.267; 2013 c.527 §2]

646A.156 Required contents of service contracts. A service contract issued, sold or offered for sale in this state shall meet the following requirements:

(1) The service contract shall be written in clear, understandable language.

(2) The service contract shall identify the obligor and the service contract seller.

(3) If prior approval of repair work is required, the service contract shall state the procedure for obtaining prior approval and for making a claim, including a toll-free telephone number for claim service and a procedure for obtaining reimbursement for emergency repairs performed outside of normal business hours.

(4) The service contract shall conspicuously state the existence of any deductible amount.

(5) The service contract shall specify the merchandise covered, services to be provided and any limitations, exceptions or exclusions.

(6) The service contract shall state any terms, restrictions or conditions governing the transferability of the service contract by the service contract holder.

(7) The service contract shall state the terms, restrictions or conditions governing termination of the service contract by the service contract holder. [Formerly 646.269]

646A.158 Prohibited conduct. (1) A service contract seller or obligor shall not in a misleading or deceptive manner use in its name, contracts or literature, the words insurance, casualty, guaranty, surety, mutual or any other words descriptive of the insurance, casualty, guaranty, surety or mutual business.

(2) In the offer or sale of any service contract, a person may not:

(a) Make, issue, circulate or cause to be made, issued or circulated, any estimate, illustration, circular or statement misrepresenting the terms of any service contract sold or to be sold or the benefits or advantages therein.

(b) Employ any device, scheme or artifice to defraud.

(c) Obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading.

(d) Engage in any other transaction, practice or course of business which operates as a fraud or deceit upon the service contract holder.

(3) In providing required services under a service contract, a person may not:

(a) Fail to acknowledge and act within a reasonable time upon communications requesting services under a service contract. Unless the service contract provides otherwise, a person shall be deemed to have acted within a reasonable time if the person responds to a communication received from a service contract holder within 30 days of receipt of the communication.

(b) Fail to act in good faith in reviewing a request for services under a service contract and advising the service contract holder whether the request is covered under the terms and conditions of the service contract.

646A.160 Service contract obligor as agent of insurer; indemnification or subrogation rights of insurer. (1) An obligor is considered to be the agent of the insurer that issued the reimbursement insurance policy. If a service contract seller acts as an obligor and enlists other service contract sellers, the service contract seller acting as the obligor shall notify the insurer of the existence and identities of the other service contract sellers.

(2) An insurer that issues a reimbursement insurance policy may seek indemnification or subrogation against a service contract seller if the issuer pays or is obligated to pay the service contract holder sums that the service contract seller was obligated to pay pursuant to the provisions of the service contract or under a contractual agreement. [Formerly 646.273]

646A.162 Investigation of violations; inspection of records; subpoenas; discontinue or desist order; civil penalties. (1) The Director of the Department of Consumer and Business Services may, upon a reasonable belief that a violation of ORS 646A.154, 646A.156 or 646A.158 has occurred, make necessary public and private investigations within or without this state to determine whether any person has violated those provisions.

(2) In connection with any investigation conducted pursuant to subsection (1) of this section, a service contract seller or obligor, upon written request of the director, shall make available to the director its service contract records for inspection and copying. The records that must be made available in accordance with this section shall be only those records necessary to enable the director to reasonably determine compliance with ORS 646A.154, 646A.156 and 646A.158.

(3) For the purpose of an investigation or proceeding under subsection (1) of this section, the director may administer oaths and affirmations, subpoena witnesses, compel their attendance, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that are relevant or material to the inquiry. Each witness who appears before the director under a subpoena shall receive the fees and mileage provided for witnesses in ORS 44.415 (2).

(4) If a person fails to comply with a subpoena issued under subsection (3) of this section, or a party or witness refuses to testify on any matters, the judge of the circuit court for any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.

(5) The director may, upon a reasonable belief that a person is or is about to be in violation of ORS 646A.154, 646A.156 or 646A.158, issue an order, directed to the person, to discontinue or desist from the violation or threatened violation. The copy of the order forwarded to the person involved shall set forth a statement of the specific charges and the fact that the person may request a hearing within 20 days of the date of mailing. Where a hearing is requested, the director shall set a date for the hearing to be held within 30 days after receipt of the request, and shall give the person involved written notice of the hearing date at least seven days prior thereto. The person requesting the hearing must establish to the satisfaction of the director that the order should not be complied with. The order shall become final 20 days after the date of mailing unless within the 20-day period the person to whom it is directed files with the director a written request for a hearing. To the extent applicable and not inconsistent with the foregoing, the provisions of ORS chapter 183 shall govern the hearing procedure and any judicial review thereof. Where the hearing has been requested, the director’s order shall become final at such time as the right to further hearing or review has expired or been exhausted.

(6) A person who is found to have violated ORS 646A.154, 646A.156 or 646A.158 may be ordered to pay to the General Fund a civil penalty in an amount determined by the director of not more than:

(a) $2,000 for the first violation.

(b) $5,000 for the second violation.

(7) For purposes of this section, a violation consists of a single course of conduct which is determined by the director to be untrue or misleading. [Formerly 646.275]

646A.164 Complaints and investigations confidential; exceptions. (1) Except as provided in subsection (3) of this section, a complaint made to the director against any person regulated by ORS 646A.150 to 646A.172, 742.390 and 742.392, and the record thereof, shall be confidential, and shall not be disclosed or available for public inspection or review. No such complaint, or the record thereof, shall be used in any action, suit or proceeding except to the extent it is essential to the prosecution of apparent violations of ORS 646A.150 to 646A.172, 742.390 and 742.392.

(2) Except as provided in subsection (3) of this section, data gathered pursuant to any investigation by the director shall be confidential, and shall not be disclosed or available for public inspection or review. The data shall not be used in any action, suit or proceeding except to the extent it is essential in the investigation or prosecution of apparent violations of ORS 646A.150 to 646A.172, 742.390 and 742.392.

(3) Notwithstanding subsections (1) and (2) of this section, the director may disclose any complaint and any data gathered pursuant to ORS 646A.150 to 646A.172, 742.390 and 742.392 to any state, federal or local enforcement agency. The recipient agency may use the complaint and data for any official purpose, including the civil enforcement of laws subject to the agency jurisdiction. [Formerly 646.277]

646A.166 Refusal to continue or suspension or revocation of registration. The Director of the Department of Consumer and Business Services may refuse to continue or may suspend or revoke an obligor’s registration if the director finds after a hearing that:

(1) The obligor has intentionally engaged in a pattern or practice of failing to comply with any lawful order of the director relating to a prior violation of ORS 646A.158 (3)(c).

(2) The obligor fails to meet or maintain the financial stability requirements set forth in ORS 646A.154. [Formerly 646.279]

646A.168 Assessment fee; rules; purpose; registration fee. (1) Each obligor that issues a service contract to a resident of this state shall pay an assessment not to exceed $1,000 to the Director of the Department of Consumer and Business Services for the purpose of supporting the legislatively authorized budget of the department for administering ORS 646A.150 to 646A.172, 742.390 and 742.392. The director shall determine by rule the basis of assessment, the amount or rate of assessment and when assessments shall be paid.

(2) The fee prescribed by the director for registration under ORS 646A.154 shall not exceed $200 per obligor per year. [Formerly 646.281]

646A.170 Remedies not exclusive. The application of any remedy under any provision of ORS 646A.150 to 646A.172, 742.390 and 742.392 shall not preclude the application of any other remedy under ORS 646A.150 to 646A.172, 742.390 and 742.392 or any other provision of law. The application of any remedy under any provision of law shall not preclude the application of any remedy under ORS 646A.150 to 646A.172, 742.390 and 742.392. [Formerly 646.283]

646A.172 Rules; exemption of certain obligors. (1) The Director of the Department of Consumer and Business Services may adopt rules necessary to implement ORS 646A.150 to 646A.172.

(2) The director may by rule exempt certain obligors or service contract sellers or specific classes of service contracts that are not otherwise exempt under ORS 646A.150 (2) from any provision of ORS 646A.150 to 646A.172, 742.390 and 742.392. The director may include in the rules substitute requirements on a finding that a particular provision of ORS 646A.150 to 646A.172, 742.390 and 742.392 is not necessary for the protection of the public or that the substitute requirement is reasonably certain to provide equivalent protection to the public. [Formerly 646.285]

CREDIT AND PURCHASING

(Credit and Debit Card Receipts)

646A.200 Definitions for ORS 646A.202 and 646A.204. As used in ORS 646A.202 and 646A.204:

(1) “Credit card” has the meaning given that term in ORS 646A.212.

(2) “Debit card” has the meaning given “debit instrument” in 15 U.S.C. 1693n. [Formerly 646.886]

646A.202 Payment processing systems. A person may not sell, lease or rent a payment processing system that provides a customer receipt that shows more information about a customer than the customer’s name and five digits of the customer’s credit or debit card number. [Formerly 646.887]

646A.204 Customer information. (1) In a credit or debit card transaction with a customer, a person may not create a customer receipt that shows more information about a customer than the customer’s name and five digits of the customer’s credit or debit card number.

(2) A person that creates or retains a copy of a receipt containing more information about a customer than the customer’s name and five digits of the customer’s credit or debit card number shall shred, incinerate or otherwise destroy the copy on or before the sooner of:

(a) The date the image of the copy is transferred onto microfilm or microfiche; or

(b) Thirty-six months after the date of the transaction that created the copy. [Formerly 646.888]

646A.206 Rules. The Attorney General may adopt rules under ORS chapter 183 to carry out the provisions of ORS 646A.200, 646A.202 and 646A.204. [Formerly 646.889]

(Numbers, Expiration Dates or Personal Information in Credit or Debit Card Transactions)

646A.210 Requiring credit card number as condition for accepting check or share draft prohibited; exceptions. (1) A person shall not require as a condition of acceptance of a check or share draft, or as a means of identification, that the person presenting the check or share draft provide a credit card number or expiration date, or both, unless the credit is issued by the person requiring the information.

(2) Subsection (1) of this section shall not prohibit a person from:

(a) Requesting a person presenting a check or share draft to display a credit card as indicia of creditworthiness and financial responsibility or as a source of additional identification;

(b) Recording the type of credit card and the issuer of the credit card displayed by the person under paragraph (a) of this subsection;

(c) Requesting or receiving a credit card number or expiration date, or both, and recording the number or date, or both, in lieu of a security deposit to assure payment in event of default, loss, damage or other occurrence;

(d) Recording a credit card number or expiration date, or both, as a condition for acceptance of a check or share draft where the card issuer guarantees checks or share drafts presented by the cardholder upon the condition that the person to whom the check is presented records the card number or expiration date, or both, on the check or share draft;

(e) Requesting and recording the name, address, motor vehicle operator license number or state identification card number and telephone number of a person offering payment by check; or

(f) Verifying the signature, name and expiration date on a credit card.

(3) This section does not require acceptance of a check or share draft whether or not a credit card is presented.

(4) For purposes of this section, “person” means any individual, corporation, partnership or association. [Formerly 646.892]

646A.212 “Credit card” defined. As used in ORS 646A.210 and 646A.214, “credit card” has the meaning given that term under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1602). [Formerly 646.893]

646A.214 Verification of identity in credit or debit card transactions. (1) A merchant that accepts a credit card or debit card for a transaction may require that the credit card or debit card holder provide personal information, other than the personal information that appears on the face of the credit card or debit card, for the purposes of verification of the card holder’s identity. The merchant may not write the information on the credit card or debit card transaction form.

(2) This section may not be construed to prevent a merchant from requesting and keeping in written form information necessary for shipping, delivery or installation of purchased goods or services, or for warranty when the information is provided voluntarily by a credit card or debit card holder.

(3) Any provision in a contract between a merchant and a credit card or debit card issuer, financial institution or other person that prohibits the merchant from verifying the identity of a person who presents a credit card or debit card in payment for goods or services by requiring or requesting identification is contrary to public policy and void.

(4) Nothing in this section may be construed to:

(a) Compel a merchant to verify the identity of a person who presents a credit card or debit card in payment for goods or services; or

(b) Interfere with the ability of a merchant to make and enforce policies regarding verification of the identity of a person who presents a credit card or debit card in payment for goods or services.

(5) As used in this section, “merchant” means a person who, in the ordinary course of that person’s business, permits persons to present credit cards or debit cards in payment for goods or services. [Formerly 646.894]

(Credit and Charge Card Solicitation Disclosure Requirements)

646A.220 Credit card solicitation; required disclosure; definitions. (1) Every solicitation for the issuance of a credit card shall disclose the following information concerning the credit card account:

(a) The annual percentage rate or rates applicable to the credit card account. If the rate or rates are variable, the solicitation shall disclose that fact and shall further disclose either the rate or rates on a specified date or the index from which the rate or rates are determined.

(b) Any minimum, fixed, transaction, activity or similar charge that could be imposed in connection with any use of the credit card.

(c) Any annual or periodic membership or participation fee that may be imposed for the availability, issuance or renewal of the credit card.

(d) Whether or not any time period is provided within which any credit extended through the use of the credit card may be repaid without incurring a finance charge, and a description of any such time period.

(2) As used in this section:

(a) “Card issuer,” “credit card,” “credit,” “annual percentage rate” and “finance charge” have the meanings given those terms under the federal Consumer Credit Protection Act (P.L. 90-321, 82 Stat. 146, 15 U.S.C. 1601).

(b) “Reasonable time” means the period beginning at the time of publication of a magazine, newspaper or other publication and ending at the time of the next publication of the magazine, newspaper or other publication, but in no case shall the period exceed 90 days following the date of publication.

(c) “Solicitation” means printed material primarily offering to issue a credit card including printed material mailed directly to a person by name that contains an application for or an offer to issue a credit card in the person’s name, application materials available at the credit card issuer’s place of business or other locations or application materials, printed advertisements or other printed information or materials contained in a magazine, newspaper or other publication which shall be considered current at the time of publication and for a reasonable time thereafter. “Solicitation” does not include material which only refers to credit cards as one of the services provided by the issuer nor does it include offers made by radio or television or through a catalog. “Solicitation” does not include an incidental reference to a credit card in the printed material. [Formerly 646.895]

646A.222 Charge card solicitation; required disclosure; definitions. (1) A charge card solicitation shall disclose clearly and conspicuously the annual fees and other charges, if any, applicable to the issuance or use of the charge card.

(2) As used in this section:

(a) “Charge card” means any card, plate or other credit device under which the issuer of the charge card extends credit to the card holder that is not subject to a finance charge and the card holder does not have automatic access to credit repayable in installments.

(c) “Solicitation” means printed material primarily offering to issue a charge card including printed material mailed directly to a person by name that contains an application for or an offer to issue a charge card in the person’s name, application materials available at the charge card issuer’s place of business or other locations or application materials, printed advertisements or other printed information or materials contained in a magazine, newspaper or other publication which shall be considered current at the time of publication and for a reasonable time thereafter. “Solicitation” does not include material which only refers to charge cards as one of the services provided by the issuer nor does it include offers made by radio or television or through a catalog. “Solicitation” does not include an incidental reference to a charge card in the printed material. [Formerly 646.897]

(Enforcement)

646A.230 Action by Attorney General or district attorney; civil and criminal penalties. (1)(a) The Attorney General or a district attorney may bring an action in the name of the state against a person to restrain and prevent a violation of ORS 646A.202, 646A.204, 646A.220 or 646A.222.

(b) The Attorney General or a district attorney may in the name of the state seek and obtain a civil penalty from a person that violates an order or injunction issued pursuant to this subsection.

(2)(a) A person that violates an order or injunction issued pursuant to subsection (1) of this section shall forfeit and pay a civil penalty of not more than $1,000 per violation. The circuit court issuing the order or injunction retains jurisdiction of the action to consider a request for a civil penalty.

(b) In an action that a prosecuting attorney brings under this section, the court may award the prevailing party, in addition to any other relief provided by law, reasonable attorney fees at trial and on appeal.

(3) A person that willfully and intentionally violates a provision of ORS 646A.220 to 646A.230 commits a Class B misdemeanor. Violation of an order or injunction issued under subsection (1) of this section constitutes prima facie proof of a violation of a provision of ORS 646A.220 to 646A.230. [Formerly 646.899; 2017 c.141 §5]

646A.232 Effect of compliance with federal law. A person who is in compliance with the requirements of the Fair Credit and Charge Card Disclosure Act, (Public Law 100-583), shall also be considered in compliance with the requirements of ORS 646A.220 and 646A.222. [Formerly 646.901]

(Extension of Credit)

646A.240 Treatment of child support obligations by creditor in applications for extensions of credit. In evaluating applications for extensions of credit, a creditor may not:

(1) Treat an applicant’s obligation to pay child support more adversely than the creditor treats or would treat another obligation for the same amount, terms and duration as the child support obligation; or

(2) Deny an application solely because the applicant used the applicant’s business address instead of the applicant’s residential address if a law of this state or a local government ordinance permits the applicant to use a business address in lieu of a residential address. [Formerly 646.861; 2009 c.183 §1]

646A.242 “Creditor” defined. As used in ORS 646A.240 to 646A.244, “creditor” means a person who, in the ordinary course of the person’s business, regularly permits debtors to defer payment of their debts, or to incur debt and defer the payment thereof, and in either case, to pay the same with a finance charge or in more than four installments. [Formerly 646.863]

646A.244 Cause of action for violation of ORS 646A.240; injunction; attorney fees; defenses. (1) Except as provided in subsection (2) of this section, a person who is adversely affected by a creditor’s violation of ORS 646A.240 shall have a cause of action to recover compensatory damages against the creditor and may also apply to a court for an injunction to prevent the creditor’s further violation of ORS 646A.240. If the damages are awarded, or an injunction granted, the person shall be entitled to reasonable attorney fees at trial and on appeal, as determined by the court in addition to costs and necessary disbursements.

(2) A creditor shall have no liability for compensatory damages, attorney fees or otherwise and no injunction shall issue:

(a) Where the creditor shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid any such error; or

(b) Where in violating ORS 646A.240, the creditor shows by a preponderance of evidence that it acted in good faith, in conformity with any statute, law, ordinance, rule, regulation, administrative interpretation or judicial determination then applicable to the transaction in question. [Formerly 646.865]

646A.250 [Formerly 646.380; repealed by 2009 c.604 §27]

646A.252 [Formerly 646.382; repealed by 2009 c.604 §27]

646A.254 [Formerly 646.384; repealed by 2009 c.604 §27]

646A.256 [Formerly 646.386; repealed by 2009 c.604 §27]

646A.258 [Formerly 646.388; repealed by 2009 c.604 §27]

646A.260 [Formerly 646.390; repealed by 2009 c.604 §27]

646A.262 [Formerly 646.392; repealed by 2009 c.604 §27]

646A.264 [Formerly 646.394; repealed by 2009 c.604 §27]

646A.266 [Formerly 646.396; repealed by 2009 c.604 §27]

646A.268 [Formerly 646.397; repealed by 2009 c.604 §27]

646A.270 [Formerly 646.398; repealed by 2009 c.604 §27]

(Gift Cards)

646A.274 Definitions for ORS 646A.276 and 646A.278. As used in ORS 646A.276 and 646A.278:

(1)(a) “Gift card” means a prefunded record evidencing a promise that the issuer will provide goods or services to the owner of the record in the amount shown in the record.

(b) “Gift card” does not mean prepaid telephone calling cards, prepaid commercial mobile radio services as defined in 47 C.F.R. 20.3, any gift card usable with more than one seller of goods or services or prepaid transportation cards.

(2) “Prepaid transportation card” means any prefunded record evidencing a promise that one or more units of state or local government of any state will provide to the owner or holder of the record, in the amount shown in the record, transportation services that may include but are not limited to the use of a transit system, road or bridge access, use of the transportation system of a transportation district and parking access. [2007 c.772 §1; 2016 c.58 §2]

646A.276 Sale of gift card that expires, declines in value, includes fee or does not give option to redeem. (1) Except as provided in subsection (2) of this section and ORS 646A.278, a person may not sell a gift card:

(a) That has an expiration date;

(b) That has a face value that declines as a result of the passage of time or the lack of use of the card;

(c) That has a fee related to the card, including, but not limited to, an inactivity fee, a maintenance fee or a service fee; or

(d) That does not give the cardholder the option to redeem the card for cash when the face value of the card has declined to an amount less than $5 and the card has been used for at least one purchase. For purposes of this paragraph, “cash” means money or a check.

(2) Subsection (1)(d) of this section does not apply to:

(a) Gift cards that have been given for free or less than full consideration to a person or entity as a donation or as part of a promotional offer;

(b) Gift cards issued by an entity that provides services that are subject to the federal Communications Act of 1934 (47 U.S.C. 151 et seq.); and

(3) Redemption under subsection (1)(d) of this section may be obtained only from the provider of goods or services indicated on the gift card regardless of whether the provider is the issuer of the gift card. [2007 c.772 §2; 2011 c.336 §1]

646A.278 Requirements for sale of gift card that expires. A person may sell a gift card that has an expiration date if:

(1) The gift card bears, in at least 10-point type, the words “EXPIRES ON” or “EXPIRATION DATE” followed by the date on which the card expires;

(2) The person sells the gift card at a cost below the face value of the card; and

(3) The gift card does not expire until at least 30 days after the date of sale. [2007 c.772 §3]

(Simulated Invoices)

646A.280 Definitions for ORS 646A.280 to 646A.290. As used in ORS 646A.280 to 646A.290:

(1) “Invoice” means a document containing an itemized list of previously ordered goods or services and an amount or amounts of money owed by the recipient of the document.

(2) “Recipient” means the person to whom an invoice or simulated invoice is uttered.

(3) “Simulated invoice” means a document containing an itemized list of unordered goods or services and an amount or amounts of money to be paid by the recipient of the document.

(4) “Utter” has the meaning given in ORS 165.002. [Formerly 646.291]

646A.282 Simulated invoices prohibited. It is unlawful for any person to utter a simulated invoice if:

(1) A reasonable recipient could, under all the circumstances of its receipt, mistake the simulated invoice for an invoice; or

(2) The person knows or reasonably should know that a recipient could mistake the simulated invoice for an invoice. [Formerly 646.293]

646A.284 Cause of action by Attorney General; judgment; attorney fees. (1) The Attorney General shall have a cause of action against any person who violates ORS 646A.282.

(2) If the Attorney General prevails, the court shall enter judgment against the defendant for:

(a) Each simulated invoice uttered in this state, for the greater of:

(A) Three times the amount stated in the simulated invoice; or

(B) $500;

(b) Such orders or judgments as may be necessary to restore to any person any moneys of which the person was deprived by any conduct in violation of ORS 646A.282; and

(3) The court may award reasonable attorney fees to the prevailing party in an action under this section.

(4) All sums of money received by the Department of Justice under a judgment, settlement or compromise in an action or potential action brought under this section, shall, upon receipt, be deposited with the State Treasurer to the credit of the Department of Justice Protection and Education Revolving Account established pursuant to ORS 180.095. [Formerly 646.296; 2009 c.820 §3]

646A.286 Cause of action by private party; judgment; attorney fees. (1) A recipient of a simulated invoice who has suffered any ascertainable loss as a result shall have a cause of action against any person who violates ORS 646A.282.

(2) If the recipient prevails, the court shall enter judgment against the defendant for:

(a) The greater of:

(A) Three times the amount stated in the simulated invoice received; or

(B) $500 for each simulated invoice received;

(b) Such orders or judgments as may be necessary to restore to the recipient any moneys of which the recipient was deprived by any conduct in violation of ORS 646A.282; and

(3) The court may award reasonable attorney fees to the prevailing party in an action under this section. [Formerly 646.298]

646A.288 Presumptions in cause of action brought under ORS 646A.284 or 646A.286. In any action brought under ORS 646A.284 or 646A.286, the following presumptions apply:

(1) A simulated invoice that has been paid by five or more persons could be mistaken for an invoice by a reasonable recipient.

(2) A person knows that a simulated invoice uttered simultaneously with a copy of a publication or portion of a publication previously ordered by the recipient from a person other than the person uttering the simulated invoice could be mistaken for an invoice by a reasonable recipient. [Formerly 646.300]

646A.290 Construction; other remedies. (1) The provisions of ORS 646A.280 to 646A.290 shall be liberally construed to effectuate its remedial purposes.

(2) The remedy provided by ORS 646A.280 to 646A.290 is in addition to any other remedy, civil or criminal, that may be available under any other provision of law. Claims based on remedies available under other provisions of law may be joined in an action under ORS 646A.280 to 646A.290 or may be asserted in a separate action. [Formerly 646.302]

(Automatic Renewal and Continuous Service Offers)

646A.292 Legislative intent. It is the intent of the Legislative Assembly to end the practice of ongoing charging of consumer credit or debit cards or third party payment accounts without the consumers’ explicit consent for ongoing shipments of a product or ongoing deliveries of service. [2011 c.509 §1]

646A.293 Definitions for ORS 646A.293 and 646A.295. As used in this section and ORS 646A.295:

(1) “Automatic renewal” means a plan or arrangement in which a paid subscription or purchasing agreement is automatically renewed at the end of a definite term for a subsequent term.

(2) “Clear and conspicuous” means in larger type than the surrounding text, or in contrasting type, font or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language. In the case of an audio disclosure, “clear and conspicuous” means in a volume and cadence sufficient to be readily audible and understandable.

(3) “Consumer” means any individual who seeks or acquires, by purchase or lease, any goods, services, money or credit for personal, family or household purposes.

(4) “Continuous service” means a plan or arrangement in which a paid subscription or purchasing agreement continues until the consumer cancels the service.

(5) “Offer terms” means the following clear and conspicuous disclosures:

(a) That the subscription or purchasing agreement will continue until the consumer cancels.

(b) The description of the cancellation policy that applies to the offer.

(c) The recurring charges that will be charged to the consumer’s credit or debit card or payment account with a third party as part of the automatic renewal or continuous service plan or arrangement, and, if the amount of the charge will change, the amount to which the charge will change, if known.

(d) The length of the automatic renewal term or that the service is continuous, unless the length of the term is chosen by the consumer.

(e) The minimum purchase obligation, if any.

(6) “Person” has the meaning given that term in ORS 646.605. [2011 c.509 §2]

646A.295 Prohibited actions; requirements; timing; failure to obtain consent; exceptions. (1) It is unlawful for a person that makes an automatic renewal or continuous service offer to a consumer in this state to do any of the following:

(a) Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before a subscription or purchasing agreement is fulfilled and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the request for consent to the offer.

(b) Charge the consumer’s credit or debit card or payment account with a third party for an automatic renewal or continuous service without first obtaining the consumer’s affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms.

(c) Fail to provide an acknowledgment that includes the automatic renewal offer terms or continuous service offer terms and information regarding how to cancel in a manner that is capable of being retained by the consumer. If the offer includes a free trial, the person shall also disclose in the acknowledgment how to cancel and allow the consumer to cancel before the consumer pays for the goods or services.

(2) A person making automatic renewal or continuous service offers shall provide a toll-free telephone number, electronic mail address, a post-office address only when the person directly bills the consumer, or another cost-effective, timely and easy-to-use mechanism for cancellation that must be described in the acknowledgment required by subsection (1)(c) of this section.

(3) In the case of a material change in the terms of the automatic renewal or continuous service offer that has been accepted by a consumer, the person shall provide the consumer with a clear and conspicuous notice of the material change and provide information regarding how to cancel in a manner that is capable of being retained by the consumer.

(4) The requirements of this section must be met prior to the completion of the initial order for the automatic renewal or continuous service, except as follows:

(a) The requirement in subsection (1)(c) of this section may be fulfilled after completion of the initial order.

(b) The requirement in subsection (3) of this section must be fulfilled prior to implementation of the material change.

(c) The requirements in subsection (1)(a) and (c) of this section may be fulfilled in the initial billing statement or invoice provided to the consumer when the person directly bills the consumer.

(5) In the event a person sends goods, wares, merchandise or products to a consumer under a continuous service agreement or pursuant to an automatic renewal of a purchase without first obtaining the consumer’s affirmative consent as required in subsection (1) of this section, the goods, wares, merchandise or products shall for all purposes be deemed an unconditional gift to the consumer who may use or dispose of them in any manner the consumer sees fit without any obligation to the person including, but not limited to, requiring the consumer to ship, or bear the cost of shipping, any goods, wares, merchandise or products to the person.

(6) The following are exempt from the requirements of this section:

(a) A person that provides a service pursuant to a franchise issued by a political subdivision of the state or a license, franchise, certificate or other authorization issued by the Public Utility Commission of Oregon.

(b) A person that provides a service regulated by the Public Utility Commission of Oregon, the Federal Communications Commission or the Federal Energy Regulatory Commission.

(d) A bank, bank holding company, or the subsidiary or affiliate of either, or a credit union or other financial institution or trust company as those terms are defined in ORS 706.008, that is licensed under state or federal law.

(e) A person that is regulated as a service contract seller under ORS 646A.150 to 646A.172.

(f) A consumer finance company licensed under ORS chapter 725.

(g) A person that provides direct-to-home satellite services subject to regulation by the Federal Communications Commission. [2011 c.509 §3]

REPURCHASING

(Repurchase of Farm Implements by Supplier From Retailer)

646A.300 Definitions for ORS 646A.300 to 646A.322. As used in ORS 646A.300 to 646A.322:

(1) “Catalog” means a catalog published in any medium, including an electronic catalog.

(2) “Change in competitive circumstances” means an event, act or omission that has a material detrimental effect on a retailer’s ability to compete with another retailer that sells the same brand of farm implements.

(3) “Current model” means a model that is listed in the supplier’s current sales manual or any supplements to the manual.

(4) “Current net price” means:

(a) The price of parts or farm implements that are listed in a supplier’s price list or catalog that is in effect at the time a contract is canceled or discontinued, less any applicable trade, volume or cash discounts, or at the time that a retailer made a warranty claim.

(b) The price listed for superseded parts in a supplier’s price list or catalog at the time a retailer purchased the parts.

(5) “Current signs” means principal outdoor signs that:

(a) A supplier requires a retailer to obtain;

(b) Identify the supplier; and

(6) “Dealership” means a location from which a retailer buys, sells, leases, trades, stores, takes on consignment or in any other manner deals in farm implements.

(7) “Distributor” means a person who sells or distributes new farm implements to a retailer.

(8) “Farm implements” means:

(a) Any vehicle designed or adapted and used exclusively for agricultural operations and only incidentally operated or used upon the highways;

(b) Auxiliary items, such as trailers, used with vehicles designed or adapted for agricultural operations;

(c) Other consumer products used for agricultural purposes, including lawn and garden equipment powered by an engine, that a supplier supplies to a retailer under a retailer agreement;

(d) Attachments and accessories used in planting, cultivating, irrigating, harvesting and marketing agricultural, horticultural or livestock products; and

(e) Outdoor power equipment, including, but not limited to, self-propelled equipment used to maintain lawns and gardens or used in landscape, turf or golf course maintenance.

(9) “F.O.B.” has the meaning given that term in ORS 72.3190.

(10) “Inventory” means farm implements, machinery and repair parts.

(11) “Manufacturer” means a person that manufactures or assembles new or unused farm implements.

(12) “Net cost” means the price a retailer actually paid a supplier for merchandise.

(13) “Retailer” means any person that engages in the business of retailing farm implements, machinery or repair parts in this state.

(14) “Retailer agreement” means an agreement between a supplier and a retailer that provides for the rights and obligations of the supplier and retailer with respect to selling or purchasing farm implements.

(15) “Specialized tool” means a tool that:

(a) A supplier requires a retailer to obtain; and

(b) Is uniquely suited for the purpose of diagnosing or repairing the supplier’s farm implements or machinery.

(16) “Supplier” means:

(a) A wholesaler, manufacturer, manufacturer’s representative or distributor.

(b) A successor in interest of a manufacturer, manufacturer’s representative or distributor, including, but not limited to:

(A) A purchaser of assets or shares of stock;

(B) A corporation or entity that results from a merger, liquidation or reorganization; or

(17) “Warranty claim” means a claim for payment that a retailer submits to a supplier for service or parts the retailer provided to a customer under a warranty that the supplier issued. [Formerly 646.415; 2015 c.563 §1]

646A.302 Application of ORS 646A.300 to 646A.322 to successor in interest or assignee of supplier. The obligations of a supplier under ORS 646A.300 to 646A.322 apply to the supplier’s successor in interest or assignee. A successor in interest includes a purchaser of assets or shares, a surviving corporation or other entity resulting from a merger or liquidation, a receiver and a trustee of the original supplier. [Formerly 646.419]

646A.304 Payment for farm implements, parts, software, tools and signs upon termination of retailer agreement. (1) If a retailer agreement is terminated, canceled or discontinued, unless the retailer elects to keep the farm implements, machinery and repair parts under a contractual right to do so, the supplier shall pay the retailer for the farm implements, machinery and repair parts or, if the retailer owes any sums to the supplier, credit the cost of the farm implements, machinery and repair parts to the retailer’s account. The payment or credit shall be as follows:

(a) The payment or the credit for the unused complete farm implements and machinery in new condition shall be in a sum equal to 100 percent of the net cost of all complete farm implements and machinery that are current models and that have been purchased by the retailer from the supplier within the 24 months immediately preceding notice of intent to cancel or discontinue the retailer agreement. The payment or credit shall include the transportation charges to the retailer and from the retailer to the supplier, if the charges have been paid by the retailer or invoiced to the retailer’s account by the supplier, and a reasonable reimbursement for services performed in connection with assembly or predelivery inspection of the implements or machinery. The supplier assumes ownership of the farm implements and machinery F.O.B. the dealership.

(b) The payment or credit for equipment used for demonstration or rental and that is in new condition shall equal the depreciated value of the equipment to which the supplier and retailer have agreed.

(c)(A) The payment or credit for repair parts shall be a sum equal to 95 percent of the current net prices of the repair parts, including superseded parts, plus the charges for transportation from the retailer to the destination designated by the supplier that the retailer paid or the supplier invoiced to the retailer’s account. The supplier assumes ownership of the repair parts F.O.B. the dealership.

(B) This paragraph applies to parts purchased by the retailer from the supplier and held by the retailer on or after the date of the cancellation or discontinuance of the retailer agreement.

(i) The supplier identified as not returnable when the retailer ordered the parts.

(ii) The retailer purchased in a set of multiple parts, unless the set is complete and in resalable condition.

(iii) The retailer failed to return after being offered a reasonable opportunity to return the repair part at a price not less than 100 percent of the net price of the repair part as listed in the then current price list or catalog.

(iv) Have a limited storage life or are otherwise subject to deterioration, including but not limited to rubber items, gaskets and batteries and repair parts in broken or damaged packages.

(v) Are single repair parts priced as a set of two or more items.

(vi) Are not resalable as new parts without new packaging or reconditioning because of their condition.

(D) The supplier shall also pay the retailer or credit to the retailer’s account a sum equal to five percent of the current net price of all parts returned for the handling, packing and loading of the parts, unless the supplier elects to list the inventory and perform packing and loading of the parts itself.

(d) Upon the payment or allowance of credit to the retailer’s account of the sum under this subsection, the title to the farm implements, farm machinery or repair parts shall pass to the supplier making the payment or allowing the credit and the supplier shall be entitled to the possession of the farm implements, machinery or repair parts.

(2)(a) If a retailer agreement is terminated, canceled or discontinued, the supplier shall, upon request of the retailer, pay the retailer for:

(A) Computer and communications hardware that:

(i) The supplier required the retailer to purchase within the preceding five years; and

(ii) The retailer possesses on the date of the agreement’s termination, cancellation or discontinuation.

(B) Computer software that:

(i) The supplier required the retailer to purchase from the supplier; and

(ii) The retailer used exclusively to support the retailer’s dealings with the supplier.

(b) If the retailer owes any sums to the supplier, the supplier may credit the cost of the hardware and software to the retailer’s account.

(c) The payment or credit shall be the net cost of the hardware and software, less 20 percent per year that the retailer possessed the hardware and software.

(d) This subsection does not apply if the retailer exercises a contractual right to keep the hardware or software.

(3)(a) If a retailer agreement is terminated, canceled or discontinued, the supplier shall pay the retailer for the retailer’s specialized tools.

(b) If the retailer owes any sums to the supplier, the supplier may credit the cost of the specialized tools to the retailer’s account.

(c)(A) If a tool is new and unused and used for the supplier’s current models, the payment or credit shall be the net cost of the tool.

(B) If a tool is not new and unused and used for the supplier’s current models, the payment or credit shall be the net cost of the tool, less 20 percent per year that the retailer possessed the tool.

(4)(a) If a retailer agreement is terminated, canceled or discontinued, the supplier shall pay the retailer for the retailer’s current signs.

(b) If the retailer owes any sums to the supplier, the supplier may credit the cost of the signs to the retailer’s account.

(c) The payment or credit shall be the net cost of the sign, less 20 percent per year that the retailer possessed the sign.

(5) A supplier shall provide all payments or allowances due under this section within 90 calendar days of the retailer’s return of the farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs. A supplier who does not provide a payment or allowance within 90 calendar days of the retailer’s return of the farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs shall pay the retailer interest of 18 percent per annum on the past due amount until paid.

(6) This section supplements any retailer agreement between the retailer and the supplier covering the return of farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs. The retailer may elect to pursue either the retailer’s remedy under the retailer agreement or the remedy provided under this section. An election by the retailer to pursue the remedy under the retailer agreement does not bar the retailer’s right to the remedy provided under this section as to those farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs not affected by the retailer agreement. This section does not affect the right of a supplier to charge back to the retailer’s account amounts previously paid or credited as a discount incident to the retailer’s purchase of goods.

(7) This section does not apply to farm implements, machinery, repair parts, computer and communications hardware, computer software, specialized tools or current signs that a retailer acquired from a source other than the supplier. [Formerly 646.425]

646A.306 Repurchase of inventory by supplier; effect of new retailer agreement. (1) A supplier shall repurchase the inventory of a retailer, as if the supplier had terminated the retailer agreement, as follows:

(a) Upon the death of a retailer whose business is owned as a tenancy by the entirety, at the option of the spouse or the heir or heirs of the retailer.

(b) Upon the death of a stockholder of a corporation operating as a retailer, at the option of the heir or heirs of the stockholder and upon the consent of the board of directors.

(2) The surviving spouse or the heir or heirs may exercise the option under this section not later than one year from the date of the death of the retailer or the stockholder.

(3) Nothing in ORS 646A.300 to 646A.322 requires the repurchase of inventory by the supplier:

(a) If the supplier and the corporation acting as a retailer enter into a new retailer agreement to operate the retail dealership.

(b) If the supplier and the surviving spouse or the heir or heirs of the retailer enter into a new retailer agreement to operate the retail dealership. [Formerly 646.435]

646A.308 Civil action for supplier’s failure to pay; venue. (1) If, upon the cancellation of a retailer agreement by the retailer or the supplier, the supplier fails to make payment as required by ORS 646A.304 or 646A.306, the supplier shall be liable in a civil action to be brought by the retailer or by the retailer’s spouse, heir or heirs for the payments required under ORS 646A.304 or 646A.306.

(2) A person who brings an action under this section must commence the action in the county in which the principal place of business of the retailer is located. [Formerly 646.445]

646A.310 Prohibited conduct by supplier. (1) A supplier may not:

(a) Coerce or compel any retailer to:

(A) Order any farm implements or parts.

(B) Accept delivery of farm implements with special features or accessories not included in the base list price of the farm implements as publicly advertised by the supplier.

(C) Enter into any agreement, whether written or oral, supplementary to an existing retailer agreement with the supplier, unless the supplementary agreement or amendment to the agreement is applicable to all other similarly situated retailers in the state.

(b) Refuse to deliver in reasonable quantities and within a reasonable time after receipt of the retailer’s order, to any retailer having a retailer agreement for the retail sale of new equipment sold or distributed by the supplier, equipment covered by the retailer agreement represented by the supplier to be available for immediate delivery.

(A) As a condition of renewal or extension of a retailer agreement that the retailer complete substantial renovation of the retailer’s place of business, or acquire new or additional space to serve as the retailer’s place of business, unless the supplier provides at least one year’s written notice of the condition which states all grounds supporting the condition.

(B) A retailer to complete a renovation or acquisition in less than a reasonable time.

(d) Discriminate among similarly situated retailers in this state with respect to the prices charged for equipment of like grade and quality sold to them by the supplier.

(e) Unreasonably withhold consent for a retailer to change the capital structure of the retailer’s business or the means by which the retailer finances the business.

(f) Prevent or attempt to prevent any retailer or any officer, member, partner or stockholder of any retailer from selling or transferring any interest to any other party or parties.

(g) Require a retailer to assent to a release, assignment, novation, waiver or estoppel which would relieve any person from liability imposed by ORS 646A.300 to 646A.322.

(h) Withhold consent to a transfer of an interest in a dealership unless the retailer’s area of responsibility or trade area does not afford sufficient sales potential to reasonably support a retailer.

(i) Unreasonably withhold consent to the sale, transfer or assignment of the retailer’s interest or power of management or control in the retailer’s business.

(j) In the event of the death or incapacity of the retailer or the principal owner of the retailer’s business, unreasonably withhold consent to the transfer of the retailer’s interest in the business to a person who meets the reasonable financial, business experience and character standards of the supplier.

(2)(a) Subsection (1)(a)(A) of this section does not apply if a law requires a retailer to order farm implements or parts.

(b) Subsection (1)(a)(B) of this section does not apply if:

(A) A law requires a supplier to supply farm implements with special features;

(B) The special features or accessories are safety features; or

(c)(A) As used in this paragraph, “act of nature” means an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight.

(B) Notwithstanding subsection (1)(b) of this section, a supplier may refuse to deliver equipment if the refusal is due to:

(i) Prudent and reasonable restrictions on extension of credit by the supplier to the retailer;

(ii) An act of nature;

(iii) A work stoppage or delay due to a strike or labor difficulty;

(iv) A bona fide shortage of materials;

(v) A freight embargo; or

(vi) Any other cause over which the supplier has no control.

(C) Subparagraph (B) of this paragraph applies only if the supplier bases delivery on ordering histories with priority given to the sequence in which the orders are received.

(d) Subsection (1)(d) of this section does not prohibit:

(A) A supplier from using differentials resulting from the differing quantities in which equipment is sold or delivered.

(B) A retailer from offering a lower price in order to meet an equally low price of a competitor or the services or facilities furnished by a competitor.

(e) Subsection (1)(e) of this section applies only if:

(A) The retailer meets the reasonable capital requirements imposed by the supplier;

(B) The retailer agreed to the capital requirements; or

(C) The change by the retailer does not result in a change of the controlling interest in the executive management or board of directors, or of any guarantors of the retailer.

(f) If a supplier does not accept a sale, transfer or assignment, the supplier shall provide written notice of the supplier’s objection and specific reasons for withholding consent.

(g) Notwithstanding subsection (1)(f) of this section, a retailer may not sell, transfer or assign the retailer’s interest or power of management or control without the written consent of the supplier.

(h) Subsection (1)(j) of this section does not apply if the retailer and supplier agreed to rights of succession.

(i) Notwithstanding subsection (1)(f), (h), (i) and (j) of this section, a supplier may withhold consent to a transfer of interest in a retailer if, with due regard to regional market conditions and distribution economies, the retailer’s area of responsibility or trade does not afford sufficient sales potential to reasonably support a retailer. [Formerly 646.447]

646A.312 Termination, cancellation or nonrenewal of retailer agreement; notice; good cause. (1) As used in this section:

(a) “Good cause” means a retailer’s:

(A) Failing to comply with a term in a retailer agreement that also appears in a retailer agreement that similarly situated retailers have with the same supplier, including a term that requires the retailer to meet marketing criteria;

(B) Transferring a controlling ownership interest in the retailer’s business without the supplier’s consent;

(C) Making a material misrepresentation or falsification of a record, contract, report or other document that the retailer has submitted to the supplier;

(D) Filing a voluntary petition in bankruptcy;

(E) Being placed involuntarily in bankruptcy and not discharging the bankruptcy within 60 days after the filing;

(F) Becoming insolvent;

(G) Being placed in a receivership;

(H) Pleading guilty to, being convicted of or being imprisoned for a felony;

(I) Failing to operate in the normal course of business for seven consecutive business days or terminating business;

(J) Relocating or establishing a new or additional place or places of business without the supplier’s consent;

(K) Failing to satisfy a payment obligation as the payment obligation comes due and payable to the supplier;

(L) Failing to promptly account to the supplier for any proceeds from selling farm implements or otherwise failing to hold the proceeds in trust for the benefit of the supplier;

(M) Consistently engaging in business practices that are detrimental to the consumer or supplier, including, but not limited to, excessive pricing, misleading advertising or failing to provide service and replacement parts or to perform warranty obligations;

(N) Inadequately representing the supplier, causing lack of performance in sales, service or warranty areas, and failing to achieve satisfactory market penetration at levels that are consistent with similarly situated retailers based on available documented information;

(O) Consistently failing to meet building and housekeeping requirements; or

(P) Consistently failing to comply with the licensing laws that apply to the supplier’s products and services.

(b) “Similarly situated retailer” means a retailer that:

(A) Is in a similar geographic area;

(B) Has similar sales volumes; and

(2)(a) A supplier that has a basis for asserting good cause may, directly or through an officer, agent or employee, terminate, cancel or not renew a retailer agreement or may cause a change in competitive circumstances for a retailer. Except as provided in subsections (3) and (4) of this section, a termination, cancellation, nonrenewal or change in competitive circumstances becomes effective upon notice to the retailer. The notice must state the reasons that constitute good cause for the termination, cancellation, nonrenewal or change in competitive circumstances.

(b) A provision or allowance in a retailer agreement for an event, act or omission may be considered but does not control whether the event, act or omission resulted in a change in competitive circumstances.

(3)(a) If a supplier’s basis for asserting good cause is a retailer’s failure under subsection (1)(a)(A) of this section, other than a failure to meet marketing criteria, the supplier shall give the retailer 90 calendar days’ written notice of the supplier’s intent to terminate, cancel or not renew the retailer agreement or to cause a change in competitive circumstances for the retailer.

(b) The notice described in paragraph (a) of this subsection must:

(A) State the supplier’s reasons for terminating, canceling or not renewing the retailer agreement or for causing a change in competitive circumstances for the retailer; and

(B) Provide that the retailer has 60 calendar days in which to cure a claimed deficiency.

(d) If the retailer fails to cure the deficiency within 60 calendar days, the termination, cancellation, nonrenewal or change in competitive circumstances becomes effective on the date specified in the notice.

(4)(a) If a supplier’s basis for asserting good cause is a retailer’s failure to meet marketing criteria under subsection (1)(a)(A) of this section or a provision of subsection (1)(a)(N) of this section, the supplier shall give the retailer 18 months’ written notice of the supplier’s intent to terminate, cancel or not renew the retailer agreement or to cause a change in competitive circumstances for the retailer.

(b) The notice described in paragraph (a) of this subsection must:

(A) State the supplier’s reasons for terminating, canceling or not renewing the retailer agreement or for causing a change in competitive circumstances for the retailer; and

(B) Provide that the retailer has one year in which to cure a claimed deficiency.

(d) If the retailer fails to cure the claimed deficiency within one year, the termination, cancellation, nonrenewal or change in competitive circumstances becomes effective on the date specified in the notice. [Formerly 646.449; 2015 c.563 §2]

646A.314 New or relocated dealership; notice; area of responsibility. (1) If a supplier enters into an agreement to establish a new retailer or dealership or to relocate a retailer or dealership, and the agreement assigns an area of responsibility, the supplier must give written notice of the agreement by certified mail to any retailer or dealership within an assigned area of responsibility that is within or contiguous to the area of the new or relocated retailer or dealership.

(2) If a supplier enters into an agreement to establish a new retailer or dealership or to relocate a retailer or dealership, and the agreement does not assign an area of responsibility, the supplier must give written notice of the agreement by certified mail to any retailer or dealership within a 75-mile radius of the new or relocated retailer or dealership.

(3) A notice required by this section shall contain:

(a) The new location of the retailer or dealership;

(b) The date that the retailer or dealership will commence business at the new location; and

(c)(A) If the agreement assigns an area of responsibility, the name and address of retailers and dealerships with assigned areas of responsibility that are within or contiguous to the area of the new or relocated retailer or dealership; or

(B) If the agreement does not assign an area of responsibility, the name and address of retailers and dealerships within a 75-mile radius of the new or relocated retailer or dealership. [Formerly 646.452]

646A.316 Warranty claims; payment; time for completion. Unless otherwise agreed:

(1) On a warranty claim, a supplier shall provide reasonable compensation for the retailer’s costs, including but not limited to:

(a) Diagnostic services;

(b) Repair services;

(d) Labor.

(2) For labor on warranty service, a supplier may not pay a retailer an hourly rate that is less than the rate that the retailer charges for nonwarranty service.

(3) For repair parts on warranty service, a supplier may not pay a retailer less than the amount that the retailer paid for the parts plus a reasonable allowance for the shipping and handling of the parts.

(4) A supplier must allow a reasonable time for a retailer to complete warranty service. [Formerly 646.453; 2009 c.11 §82]

646A.318 Warranty claims; processing. (1) A supplier shall approve or disapprove a warranty claim in writing within 30 calendar days of the supplier’s receipt of the claim.

(2) If a supplier does not approve or disapprove a warranty claim in writing within 30 calendar days of the supplier’s receipt of the claim, the supplier shall pay the claim within 60 calendar days of receipt of the claim.

(3) A supplier that approves a warranty claim shall pay the claim within 30 calendar days of the claim’s approval.

(4) A supplier that disapproves a warranty claim shall, in the writing required by subsection (1) of this section, notify the retailer of the reasons for the disapproval.

(5) If a supplier disapproves a warranty claim because the retailer failed to comply with procedures for submitting the claim prescribed by the retailer agreement, the retailer may resubmit the claim within 30 calendar days of the retailer’s receipt of the supplier’s disapproval.

(6) A supplier may not disapprove a warranty claim as untimely if the claim covers service or parts provided while a retailer agreement was in effect.

(7)(a) For one year after payment of a warranty claim, the supplier may audit records that support the claim.

(b) A supplier may not audit a record that supports a claim more than one year after paying the claim unless an audit has disclosed that the retailer submitted a false claim.

(A) Adjust a claim paid in error;

(B) Require a retailer to return payment made on a false claim; and

(C) If the retailer owes an amount to the supplier, credit the amount of a claim to the retailer’s account. [Formerly 646.454]

646A.320 Retailer’s improvements to products. Unless otherwise agreed:

(1) If a supplier requires a retailer to improve the safety of farm implements or machinery, the supplier shall reimburse the retailer for the costs of parts, labor and transportation that the retailer incurred to make the improvement.

(2) If a supplier requires a retailer to improve farm implements or machinery for reasons other than safety, the supplier shall reimburse the retailer for the costs of parts and labor that the retailer incurred to make the improvement.

(3) For labor to improve farm implements or machinery, a supplier may not pay a retailer an hourly rate that is less than rate that the retailer charges for like services.

(4) For parts to improve farm implements or machinery, a supplier may not pay a retailer less than the amount that the retailer paid for the parts plus a reasonable allowance for the shipping and handling of the parts. [Formerly 646.456]

646A.322 Remedies; arbitration; cause of action; attorney fees; injunctive relief. (1)(a) A party to a retailer agreement that is aggrieved by the conduct of another party to the agreement under ORS 646A.310, 646A.312, 646A.314, 646A.316, 646A.318 or 646A.320 may seek arbitration of the issues under ORS 36.600 to 36.740. Unless the parties agree to different arbitration rules, the arbitration must be conducted pursuant to the commercial arbitration rules of the American Arbitration Association. If the parties agree, the arbitration is the parties’ only remedy and the findings and conclusions of the arbitrator or panel of arbitrators are binding upon the parties.

(b) The arbitrator or arbitrators may award the prevailing party:

(A) The costs of witness fees and other fees in the case;

(B) Reasonable attorney fees; and

(2) Notwithstanding subsection (1) of this section, a retailer has a civil cause of action in circuit court against a supplier for damages sustained by the retailer as a consequence of the supplier’s violation of ORS 646A.310, 646A.312, 646A.314, 646A.316, 646A.318 or 646A.320, together with:

(a) The actual costs of the action;

(b) Reasonable attorney fees; and

(3) A supplier bears the burden of proving that a retailer’s area of responsibility or trade area does not afford sufficient sales potential to reasonably support the retailer. The supplier’s proof must be in writing.

(4) The remedies set forth in this section are not exclusive and are in addition to any other remedies permitted by law, unless the parties have chosen binding arbitration under subsection (1) of this section. [Formerly 646.459; 2015 c.563 §3]

(Repurchase of Motor Vehicles)

646A.325 Repurchase of motor vehicle by manufacturer; notice to dealer; contents of notice; notice to prospective buyer. (1) The manufacturer of a motor vehicle who repurchases the vehicle for any reason shall inform any vehicle dealer to whom the manufacturer subsequently delivers the vehicle for resale that the vehicle has been repurchased by the manufacturer. If the reason for the repurchase was failure or inability to conform the vehicle to express warranties under the provisions of ORS 646A.400 to 646A.418 or any similar law of another jurisdiction, the manufacturer shall also inform the dealer of that fact.

(2) A dealer who has been given information required by subsection (1) of this section shall give the information, in writing, to any prospective buyer of the vehicle.

(3) An owner of a motor vehicle who has been given information as required by subsection (1) or (2) of this section shall give the information, in writing, to any prospective buyer of the vehicle.

(4) As used in this section and ORS 646A.327, “motor vehicle” has the meaning given in ORS 646A.400. [Formerly 646.874]

646A.327 Attorney fees for action under ORS 646A.325. The court may award reasonable attorney fees to the prevailing party in an action against a person who has a duty to disclose information under ORS 646A.325. [Formerly 646.876]

MAILINGS AND DELIVERIES

(Mail Agents)

646A.340 Definitions for ORS 646A.340 to 646A.348. As used in ORS 646A.340 to 646A.348:

(1) “Mail agent” means any person, sole proprietorship, partnership, corporation or other entity who owns, manages, rents or operates one or more mailboxes, as defined in this section, for receipt of United States mail or materials received from or delivered by a private express carrier, for any person, sole proprietorship, partnership, corporation or other entity not the mail agent.

(2) “Mailbox” means any physical location or receptacle where United States mail or materials received from or delivered by a private express carrier are received, stored or sorted, including letter boxes.

(3) “Tenant” means any person, sole proprietorship, partnership, corporation or other entity who contracts with or otherwise causes a mail agent to receive, store, sort, hold or forward any United States mail or materials received from or delivered by any private express carrier on the tenant’s behalf. [Formerly 646.221]

646A.342 Prohibited conduct; required verifications and notice. (1) A mail agent shall not contract with a tenant to receive United States mail or materials received from or delivered by a private express carrier on the tenant’s behalf if the mail agent knows or should know that the tenant has provided a false name, title or address to the mail agent.

(2) Prior to contracting with a tenant to receive United States mail or materials received from or delivered by a private express carrier on the tenant’s behalf, the mail agent shall independently verify:

(a) The identity of the tenant.

(b) The residence address of the tenant if the tenant is an individual or the business address of the tenant if the tenant is a business entity.

(d) In the case of an entity using an assumed business name, that the name has been registered for use in the State of Oregon.

(3) The mail agent shall accept mail or materials received from or delivered by a private express carrier on behalf of the tenant only if the mail is, or the materials received from or delivered by a private express carrier are addressed to the tenant. The mail agent shall not deposit United States mail or materials received from or delivered by a private express carrier in any mailbox unless the addressee has rented a mailbox from the mail agent.

(4) Whenever a mail agent has reason to believe that a tenant is using a mailbox to escape identification, the mail agent shall immediately notify the Attorney General and the United States Postal Inspector. [Formerly 646.225]

646A.344 Bond or letter of credit; action; exceptions. (1) Except as provided in subsection (5) of this section, a mail agent shall maintain:

(a) A surety bond in the sum of $10,000 executed by the mail agent as obligor, together with a surety company authorized to do business in this state as surety; or

(b) An irrevocable letter of credit issued by an insured institution as defined in ORS 706.008 in the amount of $10,000.

(2) The bond or letter of credit must:

(a) Be executed to the State of Oregon and for the use of the state and of any person who may have a cause of action against the obligor of the bond or the letter of credit for a violation of ORS 646A.342 or for damages under ORS 646A.346.

(b) Provide that the obligor will comply with ORS 646A.342 and will pay to the state and to any person the moneys that may become due or owing to the state or to the person from the obligor for a violation of ORS 646A.342.

(3) The Attorney General shall approve the form of the bond or letter of credit.

(4) If a person recovers a judgment against a mail agent for a violation of ORS 646A.342 and execution issued upon the judgment is returned unsatisfied in whole or in part, the person may maintain an action upon the bond or letter of credit.

(5) Subsection (1) of this section does not apply to a mail agent whose activity as a mail agent consists solely of receiving, storing, sorting, holding or forwarding United States mail or materials received from or delivered by a private express carrier for tenants of the mail agent if:

(a) The tenant is also renting or leasing from the mail agent an office, store, residential unit or other space or unit intended for human occupancy, and the space or unit is located on the same premises as the mailbox; and

(b) The mail agent services that the mail agent is providing to the tenant are incidental to and a part of the landlord-tenant relationship that exists between the mail agent and the tenant with respect to the leased space or unit. [Formerly 646.229]

646A.346 Damages. Upon proof by a preponderance of evidence that a mail agent has failed to satisfy any of the mail agent’s duties set forth in ORS 646A.342, the mail agent shall be liable for actual damages caused to any person who sent United States mail or materials received from or delivered by a private express carrier addressed to a fictitious person at any tenant’s mailbox and who is damaged because the person who sent the United States mail or materials received from or delivered by a private express carrier is unable to identify the tenant. A mail agent’s liability under this section shall not exceed $1,000 per occurrence. [Formerly 646.235]

646A.348 Action by Attorney General; civil penalty; injunction; damages; attorney fees and costs. (1) The Attorney General may bring an action in the name of the state against any mail agent for violation of ORS 646A.342 or 646A.344. Upon proof by a preponderance of the evidence of a violation of ORS 646A.342 or 646A.344, a mail agent shall forfeit and pay a civil penalty of not more than $1,000 for an initial violation. For a second or subsequent violation, the mail agent shall forfeit and pay a civil penalty of not more than $5,000 for each violation.

(2) The Attorney General may bring an action in the name of the state against any mail agent or other person or entity to restrain or prevent any violation of ORS 646A.342 or 646A.344.

(3) The Attorney General may bring an action on behalf of a person to obtain the damages caused to the person by a mail agent’s violation of ORS 646A.342 or 646A.344.

(4) The court may award reasonable attorney fees and costs of investigation, preparation and litigation to the Attorney General if the Attorney General prevails in an action under this section. The court may award reasonable attorney fees and costs of investigation, preparation and litigation to a defendant who prevails in an action under this section if the court determines that the Attorney General had no objectively reasonable basis for asserting the claim or no reasonable basis for appealing an adverse decision of the trial court. [Formerly 646.240]

(Delivery of Hazardous Materials)

646A.350 Delivery of unrequested hazardous substances prohibited. No person shall deliver, or cause to be delivered, any hazardous substance, as defined in ORS 453.005 (7), to any residential premises without the prior consent of any occupant of such premises. [Formerly 646.870]

646A.352 Penalty. Violation of ORS 646A.350 is a Class A misdemeanor. [Formerly 646.992]

(Other Mailings or Deliveries)

646A.360 Unsolicited facsimile machine transmissions. (1) If a person receives on a facsimile machine any unsolicited and unwanted advertising material for the sale of any realty, goods or services, the person may give the sender of such material written notice to discontinue further such transmissions. No person who has received such a discontinuance notice shall use a facsimile machine to transmit unsolicited advertising material for the sale of realty, goods or services to the person who gave the discontinuance notice for a period of one calendar year from the date the notice was given.

(2) As used in this section, “facsimile machine” means a machine that electronically transmits or receives facsimiles of documents through connection with a telephone network. [Formerly 646.872]

646A.362 Exclusion of name from sweepstakes promotion mailing list; written request; rules. (1) As used in this section:

(a) “Exclusion request” means a written request to be excluded from a sweepstakes promotion mailing list or to be placed on a list of persons to whom sweepstakes promotions may not be mailed.

(b) “Sweepstakes promotion” has the meaning given that term in ORS 124.005.

(2) Any person who receives a sweepstakes promotion, or a combination of sweepstakes promotions from the same service, in the United States mail, regardless of the identities of the originators of the sweepstakes promotion, may send a written exclusion request to the originator of any sweepstakes promotion.

(3) The exclusion request shall be mailed to the address to which the recipient would have sent a payment for any goods or services promoted in the sweepstakes promotion had the recipient ordered the goods or services instead of mailing an exclusion request.

(4) An originator of a sweepstakes promotion who receives an exclusion request shall exclude the requestor’s name from the originator’s sweepstakes promotion mailing list or shall place the requestor’s name on a list of persons to whom sweepstakes promotions may not be mailed.

(5) The Attorney General shall adopt rules necessary to implement this section.

(6) It is an affirmative defense to a claim or charge of violating subsection (4) of this section that the originator of the sweepstakes promotion had, at the time of the violation, implemented reasonable practices or procedures for preventing a violation. [Formerly 646.879]

646A.365 Check, draft or payment instrument creating obligation for payment. A person may not mail or cause to be sent a check, draft or other payment instrument that, when deposited or cashed, obligates the depositor or payee thereafter to make any payment. This section does not apply to an extension of credit or an offer to lend money. [2007 c.304 §1]

AUTOMATIC DIALING AND ANNOUNCING DEVICES

646A.370 Definitions for ORS 646A.370 to 646A.374. As used in ORS 646A.370 to 646A.374:

(1) “Automatic dialing and announcing device” means an automated device that selects and dials telephone numbers and that, working alone or in conjunction with another device, disseminates a prerecorded or synthesized voice message to the telephone number that the device calls.

(2) “Call” means an attempt made to contact or a contact made with a subscriber by means of a telephone or telephone line.

(3) “Caller” means a person that attempts to contact or that contacts a subscriber by using a telephone or telephone line.

(4) “Caller identification service” means a telephone service that permits subscribers to see a caller’s telephone number before answering the telephone.

(5) “Debt buyer” means a person that engages in the business of purchasing delinquent or charged-off debt for the purpose of collecting the debt.

(6) “Established business relationship” means a previous transaction or series of transactions between a caller and a subscriber that occurred within the 18 months preceding a call.

(7) “Subscriber” means an individual who has obtained residential or wireless telephone services from a telecommunications provider, or a person who resides with the individual. [2007 c.823 §1; 2015 c.561 §1]

646A.372 Limits on usage of automatic dialing and announcing device. (1)(a) A caller may not use an automatic dialing and announcing device in order to call a subscriber unless:

(A) The device is designed and operated so as to disconnect within 10 seconds after the subscriber terminates the call; and

(B) The device provides, and the prerecorded or synthesized voice message that the device plays describes, a method by which a subscriber, within the first 10 seconds after a call begins, may enter a single dual-tone multifrequency signal or otherwise enter or speak a one-digit code to notify the caller that the subscriber does not want to receive any future calls from the caller.

(b) Paragraph (a)(B) of this subsection does not apply to a caller that:

(A) Is a collection agency, as defined in ORS 697.005, a debt buyer or a debt collector, as defined in ORS 646.639;

(B) Is a representative of a public safety or law enforcement agency; or

(2) A caller may not use an automatic dialing and announcing device to make a call unless the range of telephone numbers from which the device chooses the number to dial does not include numbers for:

(a) Fire protection, law enforcement or other emergency agencies;

(b) Hospital and health care facilities, physician’s offices, poison control centers or suicide prevention or domestic violence counseling services; and

(c) Subscribers who used the method described in subsection (1)(a)(B) of this section to notify the caller that the subscribers do not want to receive any future calls from the caller.

(3) Subsection (2)(c) of this section does not apply to a caller that:

(a) Is a collection agency, as defined in ORS 697.005, a debt buyer or a debt collector, as defined in ORS 646.639;

(b) Is a representative of a public safety or law enforcement agency; or

(4)(a) A caller may not use an automatic dialing and announcing device that dials telephone numbers randomly or sequentially unless the range of telephone numbers from which the device chooses the number to dial does not include numbers for subscribers who appear on an official list that a government agency compiled for the purpose of informing potential callers that the subscribers do not want to receive telephone solicitations.

(b) Paragraph (a) of this subsection does not apply to a caller that:

(A) Has an established business relationship with the subscriber;

(B) Is a debt buyer or is subject to regulation under the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq.;

(D) Is a representative of a school district or school if the subscriber is an employee of the school district, a student or the student’s parent, guardian or other family member.

(5) A caller that uses an automatic dialing and announcing device may use the device to call a subscriber only between the hours of 9 a.m. and 9 p.m. [2007 c.823 §2; 2015 c.561 §2]

646A.374 Prohibited actions. (1) A caller who uses an automatic dialing and announcing device in order to call a subscriber may not misrepresent or falsify, either in speaking with the subscriber or in the prerecorded or synthesized voice message disseminated during the call:

(a) The caller’s identity and the identity of any person on behalf of whom the caller is making the call;

(b) The telephone number from which the caller is making the call;

(d) The purpose for which the caller is making the call.

(2) A caller may not intentionally alter, misrepresent or falsify the information that a caller identification service would ordinarily provide to a subscriber who uses such a service.

(3) A person who provides a caller identification service is not subject to civil liability for a caller’s violation of this section. [2007 c.823 §3]

646A.376 Enforcement; civil penalty. Violation of ORS 646A.372 or 646A.374 is an unlawful trade practice that is subject to investigation under ORS 646.618 and is subject to enforcement under ORS 646.632. Notwithstanding the provisions of ORS 646.642, a civil penalty imposed for a violation of ORS 646A.372 or 646A.374 may not exceed $5,000. [2007 c.823 §4; 2015 c.561 §3]

WARRANTY REGULATION AND ENFORCEMENT

(Enforcement of Express Warranties on New Motor Vehicles)

646A.400 Definitions for ORS 646A.400 to 646A.418. As used in ORS 646A.400 to 646A.418:

(1) “Collateral charge” means a charge, fee or cost to the consumer related to the sale or lease of a motor vehicle, such as:

(a) A sales, property or use tax;

(b) A license, registration or title fee;

(d) A prepayment penalty;

(e) A charge for undercoating, rust-proofing or factory or dealer installed options; and

(f) The cost of an aftermarket item purchased within 20 days after delivery of the motor vehicle.

(2) “Consumer” means:

(a) The purchaser or lessee, other than for purposes of resale, of a new motor vehicle normally used for personal, family or household purposes;

(b) Any person to whom a new motor vehicle used for personal, family or household purposes is transferred for the same purposes during the duration of an express warranty applicable to such motor vehicle; and

(3)(a) “Motor home” means a motor vehicle that is a new or demonstrator vehicular unit built on, or permanently attached to, a self-propelled motor vehicle chassis, chassis cab or van that becomes an integral part of the completed vehicle, and that is designed to provide temporary living quarters for recreational, camping or travel use.

(b) “Motor home” does not include a trailer, camper, van or vehicle manufactured by an entity that primarily manufactures motor vehicles other than motor homes as defined in this subsection.

(c) “Motor home” does not include “living facility components,” which means those items designed, used or maintained primarily for the living quarters portion of the motor home, including but not limited to the flooring, plumbing fixtures, appliances, water heater, fabrics, door and furniture hardware, lighting fixtures, generators, roof heating and air conditioning units, cabinets, countertops, furniture and audio-visual equipment.

(4) “Motor vehicle” means a passenger motor vehicle as defined in ORS 801.360 that is purchased in this state or is purchased outside this state but registered in this state. [Formerly 646.315; 2009 c.448 §1]

646A.402 Availability of remedy. The remedy under the provisions of ORS 646A.400 to 646A.418 is available to a consumer if:

(1) A new motor vehicle does not conform to applicable manufacturer’s express warranties;

(2) The consumer reports each nonconformity to the manufacturer, the manufacturer’s agent or the manufacturer’s authorized dealer, for the purpose of repair or correction, during the two-year period following the date of original delivery of the motor vehicle to the consumer or during the period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, whichever period ends first; and

(3) The manufacturer has received direct written notification from or on behalf of the consumer and has had an opportunity to correct the alleged defect. “Notification” under this subsection includes, but is not limited to, a request by the consumer for an informal dispute settlement procedure under ORS 646A.408. [Formerly 646.325; 2009 c.448 §2]

646A.404 Consumer’s remedies; manufacturer’s affirmative defenses. (1) If the manufacturer or agents or authorized dealers of the manufacturer are unable to conform the motor vehicle to an applicable manufacturer’s express warranty by repairing or correcting a defect or condition that substantially impairs the use, market value or safety of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer shall:

(a) Replace the motor vehicle with a new motor vehicle; or

(b) Accept return of the vehicle from the consumer and refund to the consumer the full purchase or lease price and collateral charges paid, less a reasonable allowance for the consumer’s use of the motor vehicle. In lieu of refunding, as part of the collateral charges paid, the cost of an aftermarket item purchased within 20 days after delivery of the motor vehicle, the manufacturer may remove the aftermarket item from the motor vehicle, if the aftermarket item can be removed from the motor vehicle without damage, and return the aftermarket item to the consumer.

(2) Refunds must be made to the consumer and lienholder, if any, as the interests of the consumer and lienholder may appear.

(3)(a) As used in this section, “reasonable allowance for the consumer’s use of the motor vehicle” means:

(A) For a motor vehicle that is not a motorcycle or a motor home, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motor vehicle and the amount of any collateral charges paid by the consumer, and divided by 120,000.

(B) For a motorcycle, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motorcycle and the amount of any collateral charges paid by the consumer, and divided by 25,000.

(C) For a motor home, an amount of money equivalent to the motor vehicle mileage as described in paragraph (b) of this subsection, multiplied by the combined amount of the cash price or lease price of the motor home and the amount of any collateral charges paid by the consumer, and divided by 90,000.

(b) The motor vehicle mileage for the purposes of the calculation described in paragraph (a) of this subsection is the motor vehicle’s mileage at the time the manufacturer takes an action described in subsection (1) of this section, less 10 miles for mileage that the motor vehicle traveled during any period in which the consumer did not have use of the motor vehicle because the manufacturer or an agent or authorized dealer of the manufacturer was repairing the motor vehicle.

(4) It is an affirmative defense to a claim under ORS 646A.400 to 646A.418 that:

(a) An alleged nonconformity does not substantially impair such use, market value or safety; or

(b) A nonconformity is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle. [Formerly 646.335; 2009 c.448 §3]

646A.405 Manufacturer action under ORS 646A.404; request to Department of Transportation; notice to buyer; unlawful practice; rules. (1) A manufacturer that takes an action with respect to a motor vehicle under ORS 646A.404 (1)(a) or (b) shall request the Department of Transportation to:

(a) Title the motor vehicle in the manufacturer’s name; and

(b) Inscribe on the certificate of title for the motor vehicle and in the department’s records concerning the motor vehicle the notation “Lemon Law Buyback.”

(2) A person that acquires a motor vehicle in order to sell, lease or otherwise transfer the motor vehicle and that knows or should have known that the manufacturer took an action with respect to the motor vehicle under ORS 646A.404 (1)(a) or (b) or that the certificate of title for the motor vehicle is inscribed with the notation specified in subsection (1) of this section, before selling, leasing or otherwise transferring the motor vehicle shall:

(a) Provide the buyer, lessee or transferee with a notice that states:

______________________________________________________________________________

This vehicle was repurchased by its manufacturer in accordance with Oregon’s consumer warranty law because of a defect in the vehicle. The title to this vehicle has been permanently inscribed with the notation “Lemon Law Buyback.”

______________________________________________________________________________

(b) Obtain the signature of the buyer, lessee or transferee on the notice in a space provided for that purpose under a statement in which the buyer, lessee or transferee acknowledges receiving and understanding the notice.

(3) Failure to comply with the requirements of subsection (1) or (2) of this section is an unlawful practice under ORS 646.608 and a person that fails to comply with the requirements is subject to the causes of action and remedies provided in ORS 646.632 and 646.638.

(4) The Director of Transportation may adopt rules to prescribe the form and content of the notice required under this section and to require the disclosure of other information the director deems necessary to inform a buyer, lessee or transferee of the condition of a motor vehicle that is subject to the provisions of this section or information that is otherwise material to a sale, lease or transfer of the motor vehicle. [2009 c.448 §10]

646A.406 Presumption of reasonable attempt to conform; extension of time for repairs; notice to manufacturer. (1) It is presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable manufacturer’s express warranties if, during the two-year period following the date of original delivery of the motor vehicle to a consumer or during the period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, whichever period ends first:

(a) The manufacturer or an agent or authorized dealer of the manufacturer has subjected the nonconformity to repair or correction three or more times and has had an opportunity to cure the defect alleged, but the nonconformity continues to exist;

(b) The motor vehicle is out of service by reason of repair or correction for a cumulative total of 30 or more calendar days or 60 or more calendar days if the vehicle is a motor home; or

(c) The manufacturer or an agent or authorized dealer of the manufacturer has subjected a nonconformity that is likely to cause death or serious bodily injury to repair or correction at least one time and has made a final attempt to repair or correct the nonconformity, but the nonconformity continues to exist.

(2) A repair or correction for purposes of subsection (1) of this section includes a repair that must take place after the expiration of the earlier of either period.

(3) The period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles, the two-year period and the 30-day period shall be extended by any period of time during which repair services are not available to the consumer because of a war, invasion, strike, fire, flood or other natural disaster.

(4) The presumption described in subsection (1) of this section does not apply against a manufacturer unless the manufacturer has received prior direct written notification from or on behalf of the consumer and has had an opportunity to cure the defect alleged. [Formerly 646.345; 2009 c.448 §4]

646A.408 Use of informal dispute settlement procedure as condition for remedy; binding effect on manufacturer. If a manufacturer, for the purpose of settling disputes that arise under ORS 646A.400 to 646A.418, establishes or participates in an informal dispute settlement procedure that substantially complies with the provisions of 16 C.F.R. part 703, as in effect on June 23, 2009, and causes a consumer to be notified of the procedure, ORS 646A.404 does not apply to a consumer who has not first resorted to the procedure. A decision resulting from arbitration pursuant to the informal dispute settlement procedure is binding on the manufacturer but is not binding on the consumer. [Formerly 646.355; 2009 c.448 §5]

646A.410 Informal dispute settlement procedure; recordkeeping; review by Department of Justice. A manufacturer which has established or participates in an informal dispute settlement procedure shall keep records of all cases submitted to the procedure under ORS 646A.408 and shall make the records available to the Department of Justice if the department requests them. The department may review all case records kept under this section to determine whether or not the arbitrators are complying with the provisions of ORS 646A.400 to 646A.418 in reaching their decisions. [Formerly 646.357]

646A.412 Action in court; damages if manufacturer does not act in good faith; attorney fees; expert witness fees; costs. (1) If a consumer brings an action in court under ORS 646A.400 to 646A.418 against a manufacturer and the consumer is granted one of the remedies specified in ORS 646A.404 (1) by the court, the consumer shall also be awarded up to three times the amount of any damages, not to exceed $50,000 over and above the amount due the consumer under ORS 646A.404 (1), if the court finds that the manufacturer did not act in good faith.

(2) Except as provided in subsection (3) of this section, the court may award reasonable attorney fees, fees for expert witnesses and costs to a consumer who prevails in an appeal or action under ORS 646A.400 to 646A.418. If a court finds that a consumer brought an action under ORS 646A.400 to 646A.418 in bad faith or solely for the purposes of harassment, the court may award a prevailing manufacturer reasonable attorney fees.

(3) The court may award reasonable attorney fees, fees for expert witnesses and costs to the prevailing party in an appeal or action under ORS 646A.400 to 646A.418 that involves a motor home. [Formerly 646.359; 2009 c.448 §6]

646A.414 Limitations on actions against dealers. (1) Except as provided in ORS 646A.405, nothing in ORS 646A.400 to 646A.418 creates a cause of action by a consumer against a vehicle dealer.

(2) A manufacturer may not join a dealer as a party in a proceeding brought under ORS 646A.400 to 646A.418, nor may the manufacturer try to collect from a dealer damages assessed against the manufacturer in a proceeding brought under ORS 646A.400 to 646A.418. [Formerly 646.361; 2009 c.448 §7]

646A.416 Limitation on commencement of action. An action brought under ORS 646A.400 to 646A.418 must be commenced within one year after whichever of the following periods ends earlier:

(1) The period ending on the date on which the mileage on the motor vehicle reaches 24,000 miles;

(2) The two-year period following the date of the original delivery of the motor vehicle to the consumer; or

(3) The period that ends after an extension of time provided under ORS 646A.406 (3). [Formerly 646.365; 2009 c.448 §8]

646A.418 Remedies supplementary to existing statutory or common law remedies; election of remedies. Nothing in ORS 646A.400 to 646A.418 is intended in any way to limit the rights or remedies that are otherwise available to a consumer under any other law. However, if the consumer elects to pursue any other remedy in state or federal court, the remedy available under ORS 646A.400 to 646A.418 shall not be available insofar as it would result in recovery in excess of the recovery authorized by ORS 646A.404 without proof of fault resulting in damages in excess of such recovery. [Formerly 646.375]

(Vehicle Protection Product Warranties)

646A.430 Definitions for ORS 646A.430 to 646A.450. As used in ORS 646A.430 to 646A.450:

(1) “Consumer” means a person in this state who purchases a vehicle protection product or who possesses a vehicle protection product and is entitled to enforce a warranty for the product by reason of the person’s possession.

(2) “Reimbursement insurance policy” means an insurance policy issued to a warrantor that:

(a) Reimburses the warrantor for expenses or other obligations the warrantor incurs in complying with the terms and conditions in a vehicle protection product warranty; or

(b) Pays on a warrantor’s behalf all obligations due under the terms and conditions of the warrantor’s vehicle protection product warranty.

(3) “Reimbursement insurer” means an insurer that issues a reimbursement insurance policy.

(4) “Seller” means a person engaged in the business of offering a vehicle protection product for sale to a consumer.

(5)(a) “Vehicle protection product” means:

(A) A protective chemical, substance, device, product or system that is:

(i) Designed to prevent loss or damage to a vehicle from a specific cause; and

(ii) Accompanied by a written warranty that provides that if the vehicle protection product fails to prevent a specified loss or damage, the warrantor will reimburse a consumer for specified related and incidental costs the consumer incurs as a result of the vehicle protection product’s failure to perform in accordance with the terms of the vehicle protection product warranty, if the consumer purchases a physical product that is designed or formulated to make the specified related and incidental costs less likely to occur;

(B) An alarm system;

(D) A lock for a motor vehicle steering wheel, pedal or ignition;

(E) A product to etch motor vehicle windows;

(F) A kill switch for motor vehicle ignitions or fuel systems;

(G) A tracking system that uses satellites, radio or electronic means; or

(H) Other similar or related chemicals, substances, devices, products, systems or services that are designed to prevent loss or damage to a motor vehicle from a specific cause.

(b) “Vehicle protection product” does not include:

(A) A fuel or oil additive; or

(B) Other chemical products that are applied to a motor vehicle’s engine, transmission or fuel system.

(6)(a) “Warrantor” means a person that a vehicle protection product warranty names as the contractual obligor to the consumer.

(b) “Warrantor” does not include an authorized insurer that provides a warranty reimbursement insurance policy. [2007 c.685 §1; 2013 c.527 §3]

646A.432 Applicability of ORS 646A.430 to 646A.450; applicability of other law. (1) ORS 646A.430 to 646A.450 apply to vehicle protection product warranties that:

(a) Accompany vehicle protection products delivered to consumers in this state; and

(b) Require the warrantor, to the extent set forth in the warranty, to pay to the consumer expenses related to the loss of or damage to the vehicle.

(2) A vehicle protection product warranty subject to ORS 646A.430 to 646A.450 is not a service contract and is not subject to the provisions of ORS 646A.150 to 646A.172. A seller’s or warrantor’s selling or providing a warranty for a vehicle protection product in compliance with ORS 646A.430 to 646A.450 does not subject the seller or warrantor to ORS 646A.150 to 646A.172.

(3) A vehicle protection product warranty subject to ORS 646A.430 to 646A.450 is not insurance and is not subject to the provisions of the Insurance Code. A seller’s or warrantor’s selling or providing a warranty for a vehicle protection product in compliance with ORS 646A.430 to 646A.450 does not subject the seller or warrantor to the Insurance Code. [2007 c.685 §2]

646A.434 Sale of vehicle protection product; conditions and requirements. (1) A person may not offer for sale or sell a vehicle protection product that includes a vehicle protection product warranty unless, at the time of the sale, the seller or a warrantor provides to the consumer:

(a) A copy of the vehicle protection product warranty for the vehicle protection product; or

(b) A receipt for, or other written evidence of, the consumer’s purchase of the vehicle protection product.

(2) A warrantor who complies with subsection (1)(b) of this section shall provide to the consumer a copy of the vehicle protection product warranty within 30 days after the date of purchase.

(3) The vehicle protection product warranty must:

(a) Be written and printed or typed;

(b) List, either preprinted on the warranty document or, if negotiated at the time of sale, in an addition to the warranty document, the purchase price and terms of sale for the vehicle protection product;

(d) List, either preprinted on the warranty document or in an addition to the warranty document at the time of sale, the name of and contact information for the administrator for the vehicle protection product warranty, if any, the name of the seller and the name of the consumer, if the consumer has provided the consumer’s name to the warrantor;

(e) Specify the nature or contents of the vehicle protection product or the services included with the product and any limitations, exceptions or exclusions;

(f) Describe the procedure for making a claim under the warranty and provide an address and telephone number for submitting claims;

(g) Specify any restrictions governing the transferability or cancellation of the vehicle protection product warranty;

(h) Disclose the items for which the warrantor will pay incidental expenses, along with any formula the warrantor uses to calculate the expenses, or provide for a fixed sum for payment of incidental expenses;

(i) State the consumer’s duties, including any duty to protect against further damage to the vehicle and any requirement to follow the warranty’s instructions;

(j) State that a reimbursement insurance policy guarantees the obligations to the consumer set forth in the warranty;

(k) List the name and address and other available contact information for the reimbursement insurer and state that if the warrantor does not provide a covered service within 60 days after the date the consumer provides proof of loss or damage, the consumer may apply directly to the reimbursement insurer for reimbursement;

(L) List the name, mailing address and telephone number for the Department of Consumer and Business Services and state that the consumer may address unresolved complaints concerning a warrantor or questions concerning the regulation of a warrantor to the department; and

(m) State that the vehicle protection product warranty is a product warranty and not insurance. [2007 c.685 §3]

646A.436 Warrantor registration; requirements; expiration; fees; rules. (1) A person may not conduct business as a warrantor in this state or make a representation that the person is a warrantor in this state unless the person registers in writing with the Director of the Department of Consumer and Business Services in a form the director prescribes by rule. For purposes of this section, a person who offers for sale or sells a vehicle protection product but does not offer a warranty with the product or is not contractually obligated to any performance under the terms and conditions of a warranty that accompanies the product is not a warrantor subject to this section.

(2) A registration form submitted to the director under this section shall contain the following information:

(a) The warrantor’s name and telephone number and the address of the warrantor’s principal office;

(b) The name, address and telephone number of the warrantor’s agent for the service of process in this state if the agent is not the warrantor;

(c) The identities of the warrantor’s executive officer and officers directly responsible for the warrantor’s business operations related to vehicle protection product warranties;

(d) The name, address and telephone number of any person the warrantor designates to administer the warrantor’s vehicle protection product warranties in this state;

(e) A copy of each warranty form the warrantor proposes to use in this state; and

(f) A copy of a warranty reimbursement insurance policy the warrantor intends to use to demonstrate the warrantor’s financial responsibility in accordance with ORS 646A.438.

(3) A warrantor shall report any changes to the information provided in this section to the director not later than 30 days after the information has changed.

(4) A registration under this section expires on December 31 of each year. The director by rule shall prescribe a procedure for renewing a registration under this section.

(5) A warrantor shall pay a fee in an amount the director sets by rule for each registration or renewal under this section. The fee must be in an amount that, when aggregated with all other fees collected under this section, is sufficient to pay the expenses of administering and enforcing ORS 646A.430 to 646A.450. [2007 c.685 §4]

646A.438 Reimbursement insurance; requirements; insurer qualifications. (1) A warrantor shall obtain a reimbursement insurance policy from a qualified reimbursement insurer that covers all liability to the consumer under all vehicle protection product warranties a warrantor issues. A qualified reimbursement insurer is:

(a) An insurer authorized to transact insurance in this state under a certificate of authority issued in accordance with the Insurance Code; or

(b) A surplus lines insurer.

(2) The Department of Consumer and Business Services may not require any other financial security requirements or financial standards for warrantors. [2007 c.685 §5]

646A.440 Required provisions of reimbursement insurance policy; cancellation; notice. (1) A reimbursement insurance policy for a warranty issued in accordance with ORS 646A.430 to 646A.450 shall have the following provisions:

(a) The reimbursement insurer that issues the policy will reimburse or pay on behalf of the warrantor any amounts the warrantor is legally obligated to pay or will provide any service that the warrantor is legally obligated to perform under the vehicle protection product warranty.

(b) If the warrantor does not pay or provide to the consumer the amounts or the service for which the warrantor is legally obligated within 60 days after the date the consumer provides proof of loss or damage, the reimbursement insurer will pay the amount or provide the service directly to or on behalf of the consumer.

(c) A reimbursement insurer may not defend against a consumer’s claim for payment of an amount or performance of a service described in paragraph (a) of this subsection on the basis that the consumer did not pay the premium for the reimbursement insurance policy. For the purposes of any claim a consumer makes under the policy, the consumer’s payment for the vehicle protection product shall constitute payment of the premium for the reimbursement insurance policy.

(d) The warrantor to whom a reimbursement insurer issued a reimbursement insurance policy is an agent or representative of the reimbursement insurer for the purpose of obligating the reimbursement insurer to the consumer under the terms and conditions of the reimbursement insurance policy.

(2) A reimbursement insurer may not cancel a reimbursement insurance policy until the insurer delivers to the warrantor and the Director of the Department of Consumer and Business Services a written notice of cancellation.

(3) A reimbursement insurer that cancels a reimbursement insurance policy does not reduce the reimbursement insurer’s responsibility for vehicle protection products that the warrantor issued and insured under the policy before the cancellation date.

(4) A warrantor that receives a cancellation notice for a reimbursement insurance policy shall:

(a) Obtain new reimbursement insurance from a reimbursement insurer qualified in accordance with ORS 646A.438 and file proof with the Director of the Department of Consumer and Business Services that the warrantor has obtained new insurance; or

(b) Discontinue offering vehicle protection product warranties as of the date of cancellation and until the warrantor obtains new reimbursement insurance from a reimbursement insurer qualified in accordance with ORS 646A.438. [2007 c.685 §6]

646A.442 Vehicle protection product warranty administrator. A warrantor may designate a person as an administrator for the warrantor’s vehicle protection product warranties under ORS 646A.430 to 646A.450. [2007 c.685 §7]

646A.444 Recordkeeping requirements for warrantor; record retention. (1) A warrantor shall maintain accurate accounts, books and other records for transactions regulated under ORS 646A.430 to 646A.450 and shall make the records available to the Director of the Department of Consumer and Business Services for inspection during normal business hours. The warrantor’s records shall include:

(a) A copy of the warranty for each unique form of vehicle protection product sold;

(b) The name and address of each consumer;

(d) Dates, descriptions, amounts and receipts for payments to consumers for claims related to the vehicle protection product warranty or any expenditures related to providing the vehicle protection product warranty.

(2) Except as provided in subsection (4) of this section, a warrantor shall retain all records required under subsection (1) of this section for at least two years after the period of coverage specified in the vehicle protection product warranty has expired.

(3) A warrantor may maintain records required under this section in an electronic form. If the warrantor maintains a record in a format other than paper, the warrantor shall reformat the record into a legible paper copy at the director’s request.

(4) A warrantor that no longer conducts business in this state shall maintain the warrantor’s records until 10 years after the date of the last sale of a vehicle protection product that includes the warrantor’s warranty. [2007 c.685 §8]

646A.446 Prohibited conduct for warrantor. (1) A warrantor may not use in the warrantor’s name:

(a) “Casualty,” “surety,” “insurance,” “mutual” or any other word descriptive of the casualty, insurance or surety business; or

(b) A name deceptively similar to the name or description of any insurance company, surety corporation or other warrantor.

(2) A warrantor may use the word “guaranty” or a similar word in the warrantor’s name. [2007 c.685 §9]

646A.448 Prohibited activities. (1) A warrantor or a warrantor’s representative, in the warrantor’s vehicle protection product warranty or in an advertisement or literature for the warranty, may not:

(a) Make, permit or cause to be made any false or misleading statement; or

(b) Intentionally omit a material statement that would be considered misleading if omitted.

(2) A seller or warrantor may not require, as a condition of financing, that a retail purchaser of a motor vehicle purchase a vehicle protection product. [2007 c.685 §10]

646A.450 Rules; investigative powers of department. (1) The Director of the Department of Consumer and Business Services may adopt rules to implement and enforce ORS 646A.430 to 646A.450.

(2) The director may investigate warrantors or other persons as reasonably necessary to enforce ORS 646A.430 to 646A.450 and to protect consumers in this state. [2007 c.685 §11]

646A.452 Enforcement by Attorney General. The Attorney General may enforce violations of ORS 646A.430 to 646A.450 under ORS 646.608. [2007 c.685 §12]

(Warranties on Assistive Devices)

646A.460 Definitions for ORS 646A.460 to 646A.476. As used in ORS 646A.460 to 646A.476:

(1) “Assistive device” or “device” means:

(a) Wheelchairs and scooters of any kind, including other aids that enhance the mobility or positioning of an individual using a wheelchair or scooter of any kind, such as motorization, motorized positioning features and the switches and controls for any motorized features; and

(b) Hearing aids as defined in ORS 694.015.

(2) “Assistive device system” means a system of assistive devices. An “assistive device system” may be a single assistive device, or each component part of the assistive device system may be considered a separate assistive device.

(3) “Authorized dealer” means a dealer authorized by a manufacturer to sell or lease assistive devices manufactured or assembled by the manufacturer.

(4) “Collateral costs” means expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of delivering the assistive device to the manufacturer or dealer for repair and obtaining an alternative device if no loaner was offered.

(5) “Consumer” means any of the following:

(a) The purchaser of an assistive device, if the device was purchased from a dealer or manufacturer for purposes other than resale;

(b) A person to whom the assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the device;

(d) A person who leases an assistive device from a dealer under a written lease.

(6) “Current value of the written lease” means the total amount for which the lease obligates the consumer during the period of the lease remaining after its early termination, plus the dealer’s early termination costs and the market value of the assistive device at the lease expiration date if the lease sets forth that market value, less the dealer’s early termination savings.

(7) “Dealer” means a person who is in the business of selling or leasing assistive devices.

(8) “Demonstrator” means an assistive device that would be new but for its use, since its manufacture, only for the purpose of demonstrating the device to the public or prospective buyers or lessees.

(9) “Early termination cost” means any expense or obligation that a dealer incurs as a result of both the termination of a written lease before the termination date set forth in the lease and the return of an assistive device to a manufacturer under ORS 646A.464 (4). “Early termination cost” includes a penalty for prepayment under a finance arrangement.

(10) “Early termination savings” means any expense or obligation that a dealer avoids as a result of both the termination of a written lease before the termination date set forth in the lease and the return of an assistive device to a manufacturer under ORS 646A.464 (4). “Early termination savings” includes the interest charge that the dealer would have paid to finance the device or, if the dealer does not finance the device, the difference between the total amount for which a lease obligates the consumer during the period of the lease term remaining after the early termination and the present market value of that amount at the date of the early termination.

(11) “Individual with a disability” means any individual who is considered to have a mental or physical disability or impairment for the purposes of any law of this state or of the United States, including any rules or regulations adopted under those laws.

(12) “Loaner” means an assistive device, provided to the consumer for use by the user free of charge, that need not be new or be identical to or have functional capabilities equal to or greater than those of the original assistive device, but that meets the following conditions:

(a) It is in good working order;

(b) It performs at a minimum the most essential functions of the original assistive device, in light of the disability of the user; and

(13) “Manufacturer” means a person who manufactures or assembles assistive devices and agents of that person, including an importer, a distributor, factory branch, distributor branch and any warrantor of the manufacturer’s device, but does not include a dealer.

(14)(a) “Nonconformity” means a condition or defect that substantially impairs the use, market value or safety of an assistive device and that is covered by an express warranty applicable to the device or to a component of the device.

(b) “Nonconformity” does not include a condition or defect that:

(A) Is the result of abuse or neglect of the device by a consumer;

(B) Is the result of an unauthorized modification or alteration of the device by a consumer if the modification or alteration substantially affects the performance of the device; or

(C) For hearing aids, is the result of normal use of the hearing aid and when the condition or defect could be resolved through fitting adjustments, cleaning or proper care.

(15)(a) “Reasonable allowance for use” means:

(A) When an assistive device has been sold to a consumer, no more than the amount obtained by multiplying the full purchase price of the device by a fraction, the denominator of which is the number of days in the useful life of the device and the numerator of which is the number of days that the device was used before the consumer first reported the nonconformity to the manufacturer or any authorized dealer.

(B) When an assistive device has been leased to a consumer, no more than the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is the useful life of the device and the numerator of which is the number of days that the device was used before the consumer first reported the nonconformity to the manufacturer or any authorized dealer.

(b) As used in this subsection, the useful life of the assistive device is the greater of:

(A) Five years; or

(B) Such other time that the consumer may prove to be the expected useful life of assistive devices of the same kind.

(16) “Reasonable attempt to repair” means, within the terms of an express warranty applicable to an assistive device:

(a) The same nonconformity is subject to repair at least two times by the manufacturer or any authorized dealer and the nonconformity continues; or

(b) The assistive device is out of service, by reason of repair or correction, for an aggregate of at least 30 days after notification to the manufacturer or any authorized dealer because of the nonconformity.

(17) “User” means an individual with a disability who, by reason thereof, needs and actually uses the assistive device. [Formerly 646.482]

646A.462 Express warranty; duration. (1) A manufacturer who sells or leases an assistive device, including a demonstrator, to a consumer, either directly or through a dealer, shall furnish, at a minimum, an express warranty that the device shall be free from any nonconformity. The manufacturer shall set forth the warranty fully in readily understood language and shall clearly identify the party making the warranty, the rights that the warranty gives the consumer and how the consumer can exercise the rights.

(2) If the manufacturer does not furnish the express warranty described in subsection (1) of this section, the manufacturer shall be considered to have provided an express warranty that the device shall be free from any nonconformity.

(3) The duration of the warranty shall be not less than one year from the date of first delivery of the assistive device to the consumer. [Formerly 646.484]

646A.464 Repair of assistive device. (1)(a) If a new assistive device or demonstrator does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the dealer who sold or leased the device or any authorized dealer and makes the assistive device available for repair before one year after first delivery of the device to the consumer, the nonconformity shall be repaired at no charge to the consumer. If the consumer notifies the manufacturer, the manufacturer is jointly obligated together with any of its authorized dealers.

(b) A repair for purposes of this subsection includes a repair that must take place after the expiration of one year after first delivery of the assistive device to the consumer, provided that the defect occurred prior to the expiration of the warranty period and the consumer notified the manufacturer within 30 days after expiration of the period.

(2)(a) Except as provided in paragraphs (b) and (c) of this subsection, each manufacturer of an assistive device sold or leased in this state shall:

(A) Maintain or cause to be maintained in this state sufficient service and repair facilities to carry out the terms of the warranty described in ORS 646A.462; and

(B) At the time of the sale or lease, provide the consumer with the names, addresses and telephone numbers of all such service and repair facilities and of all authorized dealers.

(b) If the manufacturer does not provide service and repair facilities in this state, the consumer may return the nonconforming assistive device to the dealer who sold or leased the device or to any authorized dealer for replacement, service or repair in accordance with the terms and conditions of the express warranty. The replacement, service or repair shall be at the option of the dealer to whom the device is returned. If that dealer does not replace the nonconforming device or does not effect the service or repair of the device in accordance with the warranty, the dealer shall reimburse the consumer in an amount equal to the purchase or lease price paid, less a reasonable allowance for use by the consumer.

(c) Each manufacturer who, with respect to a new assistive device sold within this state, does not provide a service or repair facility within this state is liable for the following amounts to any dealer who incurs obligations in giving effect to the express warranty described in ORS 646A.462:

(A) In the event of replacement, in an amount equal to the cost to the dealer of the replaced assistive device and any cost of transporting the device, plus a reasonable handling charge;

(B) In the event of service or repair, in an amount equal to that which would ordinarily be received by the dealer for rendering such service or repair, including actual and reasonable costs of the service or repair and the costs of transporting the assistive device, if such costs are incurred, plus a reasonable profit; or

(C) In the event of reimbursement under paragraph (b) of this subsection, in an amount equal to that reimbursed to the consumer plus a reasonable handling or service charge.

(3) For purposes of this section, a consumer reports a nonconformity when the consumer:

(a) Makes any communication, written or oral, that describes the problem with the assistive device, or that may be reasonably understood as an expression of dissatisfaction with any aspect of the operation of the device. The communication need only indicate in some way the nature of the problem, such as an indication of the functions that the device is not performing or performing unsatisfactorily for the consumer, and need not be in technical language nor attempt to state the cause of the problem; and

(b) Does not refuse to make the assistive device available to the manufacturer, the dealer who sold or leased the device or any authorized dealer for repair.

(4)(a) It shall be presumed that the consumer has made the assistive device available to the manufacturer, the dealer who sold or leased the device or an authorized dealer for repair if the consumer allows the manufacturer or dealer to take the device from the consumer’s residence or other location where the user customarily uses the device.

(b) The consumer shall be required to deliver the device to another location only upon a showing that it would be a substantially greater hardship for the manufacturer, the dealer who sold or leased the device or any authorized dealer to take the device from the consumer’s residence or other location where the user customarily uses the device than for the consumer to deliver the device.

(c) If the consumer must deliver the device to another location in order to enable the manufacturer to repair the device, the manufacturer shall reimburse the consumer for the costs of the delivery.

(5)(a) A person required to repair an assistive device under this section shall provide the consumer a loaner if the absence of a loaner would be a threat to the safety of the user or if the assistive device is out of service for more than seven calendar days.

(b) Paragraph (a) of this subsection applies whether or not the rights of the consumer provided by ORS 646A.466 (1) or (2) have arisen and in addition to the remedies relating to collateral costs provided by ORS 646A.460 to 646A.476. [Formerly 646.486]

646A.466 Replacement or refund after attempt to repair. If a nonconformity develops in a new assistive device or demonstrator, the manufacturer shall, after a reasonable attempt to repair the device or demonstrator, at the option of the consumer:

(1) In the case of a sale, refund to the consumer and to any holder of a perfected security interest as their interest may appear, the full purchase price plus any finance charge or sales tax paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use;

(2) In the case of a lease, refund to the dealer and to any other holder of a perfected security interest, as their interest may appear, the current value of the lease and refund to the consumer the amount that the consumer paid under the lease plus any collateral costs, less a reasonable allowance for use; or

(3) Provide a conforming replacement. [Formerly 646.488]

646A.468 Procedures for replacement or refund. (1) To receive the refund or replacement described in ORS 646A.466, the consumer shall offer to the manufacturer of the assistive device, the dealer who sold or leased the device or any authorized dealer to transfer possession of the device having the nonconformity. The manufacturer shall:

(a) Make the refund within 14 calendar days after the consumer offers to transfer possession;

(b) Make the replacement within 30 calendar days after the consumer offers to transfer possession; or

(c) Provide the consumer a loaner for use if the replacement is not made within 14 calendar days after the consumer offers to transfer possession. The loaner may be used until replacement is made.

(2) The manufacturer may require as a condition of making a timely refund or replacement described in ORS 646A.466 that the consumer deliver possession of the original assistive device to the manufacturer, the dealer who sold or leased the device or any authorized dealer and sign any documents necessary to transfer title and possession of the device, or necessary to provide evidence of the transfer, to any person designated by the manufacturer.

(3) Subsection (2) of this section applies only if:

(a) The time and place of the mutual activities described in subsection (2) of this section are readily accessible to the consumer; and

(b) The manufacturer provides the consumer written notice in 12-point bold type stating in clear and understandable language the time and place of the mutual activities and directing the consumer to meet at that time and place. The notice must be received by the consumer no later than four business days before the time of the mutual activities.

(4) A person shall not enforce a lease against the consumer for use of an assistive device during any period of nonconformity or after the consumer returns the device to the manufacturer as described by this section. [Formerly 646.490]

646A.470 Sale or lease of returned assistive device. (1) An assistive device returned by a consumer or dealer in this state, or by a consumer or dealer in another state under a similar law of that state, may not be sold or leased again in this state unless full disclosure of the reasons for return is made to the prospective buyer or lessee.

(2) If a sale or lease is made in violation of subsection (1) of this section, a consumer who bought or took the lease of the assistive device shall have the rights of a consumer of a new device provided by ORS 646A.466, without regard to whether there is a nonconformity or to whether there has been a reasonable attempt to repair the device. The following paragraphs apply to a sale or lease under this section:

(a) If the consumer chooses the refund option described in ORS 646A.466, there shall be no deduction from the full purchase price in calculating the refund under ORS 646A.466;

(b) The rights described in this subsection run against the person who last sold or transferred the assistive device to any other person, whether or not the other person is a consumer, so long as the last person to sell or transfer the device had knowledge of the previous return of the device and did not provide the disclosure required by subsection (1) of this section; and

(c) The rights described under this subsection must be declared and exercised by a consumer within two years after the consumer knows of the previous return and can identify the person against whom the rights run. [Formerly 646.492]

646A.472 Dispute resolution. (1) A consumer shall have the option of submitting any dispute arising under ORS 646A.460 to 646A.476 to a dispute resolution procedure. A manufacturer shall submit to the dispute resolution procedure.

(2) The procedure shall provide at a minimum the right of each party to present its case, to be in attendance during any presentation made by the other party and to rebut or refute such presentation. The individuals conducting the dispute resolution procedure must be objective.

(3) A decision resulting from the dispute resolution procedure shall be binding on the manufacturer.

(4) The records of the results of disputes settled under this section shall be submitted to the Department of Justice if the department requests them and shall be available to any person who makes a request for the records free of cost within 10 business days of the person’s request. The department may review all records created under this section to determine whether or not the procedure and decisions comply with the provisions of ORS 646A.460 to 646A.476.

(5) The Department of Justice shall establish a roster of dispute resolution providers for consumers seeking to resolve disputes with manufacturers or to assert their rights under this section. [Formerly 646.494]

646A.474 Applicability of other laws; waiver. ORS 646A.460 to 646A.476 shall not be construed as limiting rights or remedies available to a consumer under any other law. Any waiver by a consumer of rights provided by ORS 646A.460 to 646A.476 is void. [Formerly 646.496]

646A.476 Civil action for damages; attorney fees; limitation on actions. (1) In addition to pursuing any other remedy, a consumer may bring a private cause of action to recover damages caused by a violation of any provision of ORS 646A.460 to 646A.476. The court shall award a consumer who prevails in such an action pecuniary loss and noneconomic damages, together with costs, disbursements, reasonable attorney fees and any equitable relief that the court determines is appropriate. Pecuniary loss caused by a violation of ORS 646A.460 to 646A.476 shall include collateral costs, beginning at the time of the violation, whether or not the consumer acquired the rights provided by ORS 646A.466. If a consumer has submitted a dispute arising under ORS 646A.460 to 646A.476 to a dispute resolution procedure as described in ORS 646A.472, the consumer may not bring a private cause of action under this section relating to that dispute until a decision resulting from the dispute resolution procedure has been issued or until the consumer has withdrawn the dispute from the dispute resolution procedure.

(2) If a consumer appeals to a court from a decision resulting from the dispute resolution procedure described in ORS 646A.472 because the consumer was not granted one of the remedies by ORS 646A.460 to 646A.476, and the consumer is granted one of the remedies by the court, the consumer shall be awarded:

(a) Up to three times the amount of any damages awarded if the court finds that the party opposing the consumer did not act in good faith in the dispute resolution procedure;

(b) Reasonable attorney fees; and

(3) If the party opposing the consumer is the prevailing party in an action brought under subsection (1) or (2) of this section, the party opposing the consumer shall be entitled to reasonable attorney fees if the court finds the action to have been frivolous.

(4) Any action brought under this section shall be commenced during the period beginning one year after the date the assistive device was originally delivered to the consumer and ending two years later. [Formerly 646.498]

VEHICLE REPAIR SHOPS

646A.480 Definitions for ORS 646A.480 to 646A.495. As used in ORS 646A.480 to 646A.495:

(1)(a) “Motor vehicle” means a self-propelled device, other than a motor home, that is used:

(A) To transport persons or property upon a public highway; and

(B) For personal, family or household purposes.

(b) “Motor vehicle” does not include a motor vehicle owned as part of a fleet and maintained under the terms of a maintenance contract.

(2) “Owner” means an individual who has legal authority or apparent legal authority to make decisions concerning the maintenance or repair of a motor vehicle.

(3) “Owner’s designee” means an individual who received permission in accordance with ORS 646A.495 to make decisions concerning the repair or maintenance of a motor vehicle.

(4)(a) “Vehicle repair shop” means an individual, corporation, partnership, limited liability company or other business entity that in exchange for payment evaluates the condition of, maintains or repairs a motor vehicle.

(b) “Vehicle repair shop” does not include a motor vehicle body and frame repair shop, as defined in ORS 746.275. [2009 c.133 §1]

646A.482 Estimate required before beginning work; contents; evaluation. (1) A vehicle repair shop shall prepare an estimate of the cost of work the vehicle repair shop proposes to perform on a motor vehicle before beginning the work. The vehicle repair shop not later than before receiving final payment shall give a copy of the estimate, either as a separate document or in the form of an invoice, to the owner or the owner’s designee. The vehicle repair shop shall retain a copy of the estimate. The estimate, at a minimum, must:

(a) Describe the general nature of the proposed work;

(b) Divide the work into separate tasks, to the extent that the work may be divided into separate tasks; and

(A) The estimated cost of labor and the parts or component systems the vehicle repair shop proposes to replace;

(B) The amount of any incidental charges; and

(2) If a vehicle repair shop proposes to disassemble all or a portion of a motor vehicle or to remove parts or components of a motor vehicle in order to evaluate the condition of the motor vehicle for the purpose of recommending or proposing additional work, in addition to complying with the requirements shown in subsection (1) of this section, the estimate must:

(a) List the total estimated cost of performing the disassembly and evaluation and a separate estimate of the cost for reassembly, assuming for the purpose of the estimate that the owner or owner’s designee elects not to proceed with work the vehicle repair shop may recommend or propose after evaluating the condition of the motor vehicle; and

(b) State the estimated amount of time, calculated from the date on which the owner or owner’s designee authorizes the disassembly, evaluation and reassembly of the motor vehicle, that the vehicle repair shop would reasonably take to reassemble the motor vehicle if all necessary parts are available and if the owner or owner’s designee, on the day that the owner or owner’s designee receives the estimate, elects not to proceed with work the vehicle repair shop recommends or proposes after evaluating the condition of the motor vehicle. [2009 c.133 §2]

646A.486 Prohibited actions if estimate exceeds $200; revision of estimate; methods to obtain owner authorization. (1) Except as provided in subsection (2) of this section, a vehicle repair shop may not take any of the following actions if an estimate prepared under ORS 646A.482 shows that taking the action will cost the owner or the owner’s designee more than $200:

(a) Evaluate the condition of a motor vehicle.

(b) Disassemble all or a portion of a motor vehicle or remove parts or components of a motor vehicle in order to evaluate the condition of the motor vehicle.

(A) Repair a motor vehicle; or

(B) Maintain the motor vehicle in or restore the motor vehicle to an operable condition or a condition that conforms with an identified or recognized standard.

(d) Use a work method or procedure, perform a task or labor or replace a part in a manner that differs from the method, procedure, task, labor or part described or identified in the estimate, if the change increases the cost specified in the estimate by more than 10 percent or by more than $200, whichever amount is less.

(2) A vehicle repair shop shall obtain a separate authorization from the owner or the owner’s designee before taking an action described in subsection (1) of this section. After consulting with the owner or owner’s designee, the vehicle repair shop shall:

(a) Cross out, remove from or otherwise indicate on the estimate prepared under ORS 646A.482 the work the vehicle repair shop will not perform on the motor vehicle and recalculate and display on the estimate the cost of work the vehicle repair shop will perform before obtaining authorization or assent from the owner or owner’s designee; or

(b) Prepare a new estimate in accordance with ORS 646A.482 and void the previous estimate before obtaining authorization or assent from the owner or owner’s designee.

(3) The vehicle repair shop may obtain authorization or assent by any of the following means:

(a) Obtaining the signature of the owner or owner’s designee under a statement printed on the estimate that authorizes the action.

(b) Obtaining the oral assent of the owner or owner’s designee by telephone. The vehicle repair shop shall provide the owner or owner’s designee with all material information shown on the estimate and shall note on the estimate the name and telephone number of the person that gives the assent and the date and time of the call.

(c) Receiving by facsimile, electronic mail or other electronic means a written message that authorizes the work. A facsimile message must display the signature of the person that gives the authorization and the date and time of transmission. An electronic mail or other electronic message must show the name of the person that gives the authorization and the date and time of transmission. The vehicle repair shop shall attach the facsimile or a printout of the electronic mail or other electronic message to a copy of the estimate. [2009 c.133 §3]

646A.490 Additional prohibited actions; reassembly required; copies. (1) A vehicle repair shop may not:

(a) Charge a person for work not performed on a motor vehicle even if the work is shown on an estimate for which the vehicle repair shop has obtained an authorization from the owner or the owner’s designee.

(b) Provide or install used parts or any component system composed of new and used parts if an estimate prepared under ORS 646A.482 indicates that the vehicle repair shop will use new parts or component systems in work performed on the motor vehicle.

(2) A vehicle repair shop shall:

(a) Reassemble, if all necessary parts are available, approximately within the time indicated on an estimate prepared under ORS 646A.482 (2), a motor vehicle that the vehicle repair shop has disassembled or from which the vehicle repair shop has removed parts in order to evaluate the condition of the motor vehicle.

(b) Maintain for not less than one year, in electronic or printed form, legible copies of all documents required or provided under ORS 646A.480 to 646A.495. [2009 c.133 §4]

646A.495 Owner designee; waiver of authorization requirement. (1) An owner may designate a person as the owner’s designee:

(a) In writing, either on the estimate prepared under ORS 646A.482 or by means of a separate document. The owner shall sign a written designation made in accordance with this paragraph. If the designation is a separate document, the vehicle repair shop shall attach a copy of the document to the estimate.

(b) Orally or by telephone. For a designation made in accordance with this paragraph, the vehicle repair shop shall note on the estimate the name and telephone number of the person who made the designation, the name of the owner’s designee and, if the person made the designation by telephone, the date and time of the call.

(2) An owner may waive the authorization requirement set forth in ORS 646A.486 (2) only when the owner receives an explanation of the authorization requirements and signs a separate document directly under a statement that conspicuously identifies the authorization requirement.

(3) An owner may not designate a motor vehicle repair shop or a principal, agent or employee of a motor vehicle repair shop as the owner’s designee.

(4) For purposes of this section, a statement is conspicuous if a reasonable person reading the separate document should have noticed the statement. [2009 c.133 §5]

INFANT CRIB SAFETY

646A.500 Legislative findings; declaration of purpose. (1) The Legislative Assembly finds that:

(a) The disability and death of infants resulting from injuries sustained in crib accidents are a serious threat to the public health, welfare and safety of the people of this state;

(b) Infants are an especially vulnerable class of people;

(c) The design and construction of a crib must ensure that the crib is a safe place to leave an infant unattended for an extended period of time;

(d) A parent or caregiver has a right to believe that a crib is a safe place to leave an infant;

(e) The United States Consumer Product Safety Commission estimates that 40 children suffocate or strangle in their cribs every year;

(f) Existing state and federal legislation is inadequate to deal with the hazard of injuries and death to infants from unsafe cribs; and

(g) Prohibiting the remanufacture, retrofitting, sale, contracting to sell or resell, leasing or subletting of unsafe cribs, particularly unsafe secondhand, hand-me-down or heirloom cribs, will prevent injuries and deaths caused by unsafe cribs.

(2) The purpose of ORS 646A.500 to 646A.514 is to prevent the occurrence of injuries to and deaths of infants resulting from unsafe cribs by making it illegal to remanufacture, retrofit, sell, contract to sell or resell, lease, sublet or otherwise place in the stream of commerce any crib that is unsafe for an infant using the crib. [Formerly 646.500]

646A.502 Short title. ORS 646A.500 to 646A.514 may be referred to as the Infant Crib Safety Act. [Formerly 646.501]

646A.504 Definitions for ORS 646A.500 to 646A.514. As used in ORS 646A.500 to 646A.514:

(1) “Commercial user” means any person, firm, corporation, association or nonprofit corporation, or any agent or employee of a person, firm, corporation, association or nonprofit corporation, including child care facilities or family child care homes certified or registered by the Office of Child Care under ORS 329A.250 to 329A.450, that:

(a) Deals in cribs of the kind governed by ORS 646A.500 to 646A.514;

(b) By virtue of the person’s occupation, purports to have knowledge or skill peculiar to the cribs governed by ORS 646A.500 to 646A.514;

(c) Is in the business of remanufacturing, retrofitting, selling, leasing, subletting or otherwise placing cribs in the stream of commerce; or

(d) Uses a crib in caring for infants in return for compensation.

(2) “Crib” means:

(a) Any full-size crib as that term is defined in 16 C.F.R. 1508.3; or

(b) Any nonfull-size crib as that term is defined in 16 C.F.R. 1509.2(b).

(3) “Crib bumper pad” means a pad, other than a mesh liner, that rests directly above the mattress in a crib, or that runs along the surface area or any of the interior sides of the crib.

(4) “Individual” means a natural person who is not a commercial user of cribs.

(5) “Infant” means an individual who is less than three years of age.

(6) “Place of public accommodation” has the meaning given that term in ORS 659A.400. [Formerly 646.502; 2013 c.624 §85; 2021 c.188 §1]

646A.506 Prohibited conduct. (1) A commercial user may not remanufacture, retrofit, sell, contract to sell or resell, lease, sublet or otherwise place in the stream of commerce:

(a) A crib that is unsafe for an infant using the crib; or

(b) A crib bumper pad.

(2) A crib is presumed to be unsafe pursuant to ORS 646A.500 to 646A.514 if the crib does not conform to the following standards:

(a) 16 C.F.R. part 1508;

(b) 16 C.F.R. part 1509;

(d) American Society for Testing Materials Voluntary Standards F966-90, F1169.88, F1822 and F406.

(3) Cribs that are presumed to be unsafe under subsection (2) of this section include but are not limited to cribs with any of the following features or characteristics:

(a) Corner posts that extend more than one-sixteenth of an inch;

(b) Spaces between side slats more than two and three-eighths inches;

(c) Mattress supports that can be easily dislodged from any point of the crib. A mattress support can be easily dislodged if it cannot withstand a 25-pound upward force from underneath the crib;

(d) Cutout designs on the end panels;

(e) Rail height dimensions that do not conform to the following:

(A) The height of the rail and end panel as measured from the top of the rail or panel in its lowest position to the top of the mattress support in its highest position is at least nine inches; or

(B) The height of the rail and end panel as measured from the top of the rail or panel in its highest position to the top of the mattress support in its lowest position is at least 26 inches;

(f) Any screws, bolts or hardware that is loose or not secured;

(g) Sharp edges, points, rough surfaces or any wood surfaces that are not smooth and free from splinters, splits or cracks;

(h) Cribs with tears in mesh or fabric sides; or

(i) Crib bumper pads incorporated into or included with the crib as an accessory.

(4) An individual may not remanufacture, retrofit, sell, contract to sell or resell, lease, sublet or otherwise place in the stream of commerce a crib that is unsafe for an infant using the crib.

(5) A commercial user or place of public accommodation may not use or have on the premises a crib bumper pad unless a medical professional has determined that using a crib bumper pad is medically necessary for a particular infant that uses a crib on the premises of the commercial user or place of public accommodation.

(6) The Office of Child Care shall:

(a) Provide notice of the provisions of this section to child care facilities and family care homes certified or registered by the office and to applicants for certification and registration; and

(b) Adopt rules necessary to implement the provisions of this subsection. [Formerly 646.503; 2021 c.188 §2]

646A.508 Penalties. (1) A commercial user who willfully and knowingly sells, leases or otherwise places in the stream of commerce an unsafe baby crib as described in ORS 646A.506 (1) to (3) commits a Class A violation.

(2) An individual who willfully and knowingly sells, leases or otherwise places in the stream of commerce an unsafe baby crib as described in ORS 646A.506 (1) to (3) commits a Class B violation. [Formerly 646.504; 2011 c.597 §259]

646A.510 Exemptions. (1) An antique or vintage crib that is clearly not intended for use by an infant is exempt from the provisions of ORS 646A.500 to 646A.514 if the antique or vintage crib is accompanied at the time of remanufacturing, retrofitting, selling, leasing, subletting or otherwise placing in the stream of commerce by a notice furnished by the commercial user that states that the antique or vintage crib is not intended for use by an infant and that the antique or vintage crib is dangerous for use by an infant.

(2) A commercial user is exempt from liability resulting from use of an antique or vintage crib in a manner that is contrary to the notice required by this section.

(3) As used in this section, “antique or vintage crib” means a crib that is:

(a) 50 years or older measured from the current year;

(b) Maintained as a collector’s item; and

646A.512 Private right of action; attorney fees. Any person may maintain an action against a commercial user who violates ORS 646A.506 (1) to (3), to enjoin the remanufacture, retrofitting, sale, contract to sell or resell, lease or subletting of a crib that is unsafe for an infant, and for reasonable attorney fees and costs. [Formerly 646.506]

646A.514 Scope of remedies. Remedies available under ORS 646A.508 and 646A.512 are in addition to any other remedies available under law to an aggrieved party. [Formerly 646.507]

CHILDREN’S PRODUCTS

646A.525 Definitions for ORS 646A.525 to 646A.535. As used in ORS 646A.525 to 646A.535:

(1)(a) “Children’s product” means a consumer product that is designed or intended:

(A) For the care of or use by a child under 12 years of age; or

(B) To come into contact with a child under 12 years of age at the time the product is used.

(b) “Children’s product” does not include:

(A) A medication, drug, food or other product that is intended to be ingested; or

(B) A crib, as defined in ORS 646A.504.

(2) “Retailer” means a person that, in the ordinary course of the person’s business, sells or offers for sale, leases, sublets or otherwise distributes a children’s product to consumers in this state.

(3)(a) “Warning” means a communication about a health or safety hazard that a children’s product poses to consumers that is:

(A) Directed to a retailer; and

(B) Intended to inform the retailer about the health or safety hazard, instruct the retailer to remove the children’s product from inventory or provide the retailer with a method to eliminate the health or safety hazard.

(b) “Warning” does not include a communication:

(A) Directed to consumers; and

(B) Affixed to the children’s product or packaging related to the children’s product or provided by the retailer to the consumer as part of a transaction related to the children’s product. [2008 c.31 §1]

646A.530 Prohibited sales of certain children’s products; recall notices and warnings; disposal of recalled children’s products; compliance with warning instructions. (1) A retailer may not sell or offer for sale, lease, sublet or otherwise distribute a children’s product to consumers in this state if the children’s product is:

(a) Subject to a recall notice issued by or in cooperation with the United States Consumer Product Safety Commission or a successor agency;

(b) The subject of a warning issued by the children’s product manufacturer or the Consumer Product Safety Commission or a successor agency that the intended use of the children’s product constitutes a health or safety hazard, unless the retailer has eliminated the hazard and made the children’s product safe for sale, lease, subletting or distribution to consumers in strict compliance with standards and instructions provided in or related to the warning; or

(c) Subject to a declaration by the Director of the Oregon Health Authority under ORS 453.055 or under rules adopted by the Oregon Health Authority that the children’s product is a banned hazardous substance.

(2) A retailer shall subscribe to or arrange to receive recall notices and warnings issued by the Consumer Product Safety Commission and warnings issued by manufacturers from which the retailer receives children’s products.

(3) A retailer shall dispose of a children’s product identified in a recall notice or warning issued by or in cooperation with the Consumer Product Safety Commission or a successor agency in strict compliance with disposal instructions included with or related to the recall notice or warning.

(4) A retailer shall comply strictly with all return, repair, retrofitting, labeling or remediation instructions issued with or related to a warning issued by the Consumer Product Safety Commission or a successor agency, an agency of this state or the children’s product manufacturer. [2008 c.31 §2; 2009 c.595 §1162]

646A.535 Assistance of Attorney General in obtaining recall notices. The Attorney General shall assist retailers in obtaining information the retailers may need to subscribe to or arrange to receive recall notices issued by the United States Consumer Product Safety Commission for children’s products. The assistance shall include, but is not limited to, providing links from the Attorney General’s website to a website maintained by or in cooperation with the Consumer Product Safety Commission for the purpose of disseminating product recall notices. [2008 c.31 §3]

PREMOISTENED WIPES

646A.540 Definitions; labeling and packaging requirements; preemption. (1) As used in ORS 646A.540 to 646A.544:

(a) “Covered entity” means:

(A) The manufacturer of a covered product that is sold or offered for sale in this state; and

(B) A wholesaler, supplier or retailer that has contractually undertaken responsibility to a manufacturer for labeling or packaging a covered product.

(b) “Covered product” means a consumer product that is sold or offered for sale in this state and that is:

(A) A premoistened nonwoven disposable wipe marketed as a baby wipe or diapering wipe; or

(B) A premoistened nonwoven disposable wipe that is:

(i) Composed partly or entirely of petrochemical-derived fibers; and

(ii) Likely to be used in or near a bathroom and has significant potential to be flushed, including baby wipes, bathroom cleaning wipes, toilet cleaning wipes, hard surface cleaning wipes, disinfecting wipes, hand sanitizing and other sanitizing wipes, antibacterial wipes, facial and makeup removal wipes, general purpose cleaning wipes, personal care wipes for use on the body, feminine hygiene wipes, adult incontinence wipes, adult hygiene wipes and body cleansing wipes.

(A) Provided by either a light symbol on a solid dark background or a dark symbol on a solid light background; and

(B) Having at least 70 percent contrast between the symbol artwork and background using the formula [(B1 - B2) / B1] * 100, where B1 is the light reflectance value of the relatively lighter area and B2 is the light reflectance value of the relatively darker area.

(d) “Label notice” means the phrase “Do Not Flush” displayed at a size that is equal to at least two percent of the surface area of the principal display panel, except as follows:

(A) For a covered product regulated under the Federal Hazardous Substances Act, 15 U.S.C. 1261 et seq., and regulations of the United States Consumer Product Safety Commission in 16 C.F.R. 1500.121, if the label notice requirements in this paragraph would result in a type size larger than first aid instructions required under the Federal Hazardous Substances Act or regulations of the United States Consumer Product Safety Commission, the type size for the label notice must, to the extent permitted under federal law, be equal to or greater than the type size required for the first aid instructions; and

(B) For covered products required to be registered by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq., if the label notice requirements in this paragraph would result in a type size on the principal display panel that is larger than a warning required under the Federal Insecticide, Fungicide, and Rodenticide Act, the type size for the label notice must, to the extent permitted under federal law, be equal to or greater than the type size required for the “Keep out of reach of children” statement.

(e) “Principal display panel” means the side of the product package that is most likely to be displayed, presented or shown under customary conditions of display for retail sale and that:

(A) For a cylindrical or nearly cylindrical product package, constitutes 40 percent of the product package, as measured by multiplying the height of the container by the circumference; or

(B) For a flexible film package in which a rectangular or nearly rectangular prism stack of wipes is housed within the film, the surface area of the principal display panel is measured by multiplying the length by the width of the side of the package when the flexible packaging film is pressed flat against the stack of wipes on all sides of the stack.

(f) “Special district” means a special district, as defined in ORS 197.015, that provides wastewater services.

(g) “Symbol” means the “Do Not Flush” symbol or its equivalent, as depicted in the INDA/EDANA Code of Practice, Second Edition, and published within “Guidelines for Assessing the Flushability of Disposable Nonwoven Products,” as in effect on September 25, 2021. The symbol must be sized equal to at least two percent of the surface area of the principal display panel, except as specified in subsection (2)(a)(B)(iii) of this section.

(2) Except as otherwise provided in this section, a covered product that is manufactured after July 1, 2022, must be labeled clearly and conspicuously in accordance with the following requirements:

(a) For cylindrical or nearly cylindrical packaging intended to dispense individual wipes, a covered entity shall:

(A) Place the symbol and label notice on the principal display panel in a location that is reasonably viewable each time a wipe is dispensed; or

(B) Place the symbol on the principal display panel and either the symbol or label notice, or the symbol and label notice in combination, on the flip lid subject to the following requirements:

(i) If the label notice does not appear on the flip lid, the label notice must be placed on the principal display panel.

(ii) The symbol or label notice, or the symbol and label notice in combination, on the flip lid may be embossed, in which case the symbol or label notice, or the symbol and label notice in combination, do not need to comply with the requirement set forth in paragraph (f) of this subsection.

(iii) The symbol or label notice, or the symbol and label notice in combination, on the flip lid must cover a minimum of eight percent of the surface area of the flip lid.

(b) For flexible film packaging intended to dispense individual wipes, a covered entity shall place the symbol on the principal display panel and dispensing side panel and place the label notice on either the principal display panel or dispensing side panel, in a prominent location reasonably visible to the user each time a wipe is dispensed. If the principal display panel is on the dispensing side of the package, two symbols are not required.

(c) For refillable tubs or other rigid packaging intended to dispense individual wipes and be reused by the consumer for that purpose, a covered entity shall place the symbol and label notice on the principal display panel in a prominent location reasonably visible to the user each time a wipe is dispensed.

(d) For packaging not intended to dispense individual wipes, a covered entity shall place the symbol and label notice on the principal display panel in a prominent and reasonably visible location.

(e) A covered entity shall ensure that the packaging seams, folds or other package design elements do not obscure the symbol or the label notice.

(f) A covered entity shall ensure that the symbol and the label notice have sufficiently high contrast with the immediate background of the packaging to render them more likely to be seen and read by the ordinary individual under customary conditions of purchase and use.

(3) For covered products sold in bulk at retail, both the outer package visible at retail and the individual packages contained within must comply with the labeling requirements set forth in subsection (2) of this section that apply to the particular packaging types, except the following:

(a) Individual packages contained within the outer package that are not intended to dispense individual wipes and contain no retail labeling; and

(b) Outer packages that do not obscure the symbol and label notice on individual packages contained within.

(4) If a covered product is provided within the same packaging as another consumer product for use in combination with the other product, the outside retail packaging of the other consumer product does not need to comply with the labeling requirements of subsection (2) of this section.

(5) If a covered product is provided within the same packaging as another consumer product for use in combination with the other product and is in a package smaller than three inches by three inches, the covered entity may comply with the requirements of subsection (2) of this section by placing the symbol and label notice in a prominent location reasonably visible to the user of the covered product.

(6) A covered entity, directly or through a corporation, partnership, subsidiary, division, trade name or association in connection to the manufacturing, labeling, packaging, advertising, promotion, offering for sale, sale or distribution of a covered product, may not make any representation, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, illustration, trademark or trade name, about the flushable attributes, flushable benefits, flushable performance or flushable efficacy of a covered product.

(7) If a covered product is required to be registered by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136 et seq., and the State Department of Agriculture under ORS chapter 634, the covered entity, to the extent permitted under federal law, shall submit a label compliant with the labeling requirements of subsection (2) of this section no later than July 1, 2023, to the United States Environmental Protection Agency and, upon its approval, to the State Department of Agriculture, which shall review the label of the covered product in the manner authorized under ORS chapter 634 and administrative rules adopted under ORS chapter 634. Compliance with the labeling requirements of subsection (2) of this section is not a requirement for pesticide registration under ORS chapter 634.

(8) If the United States Environmental Protection Agency and the State Department of Agriculture do not approve a product label that otherwise complies with the labeling requirements of subsection (2) of this section, the covered entity shall use a label with as many of the requirements of this section as the agency and the department have approved.

(9) A covered entity may include on a covered product words or phrases in addition to those required for the label notice if the words or phrases are consistent with purposes of this section.

(10) Except as expressly authorized by state law, this section supersedes and preempts any ordinance or other regulation enacted before, on or after September 25, 2021, by the governing body of a city, county or other political subdivision of this state that governs labeling requirements for covered products. [2021 c.181 §1]

Note: 646A.540 becomes operative July 1, 2022. See section 4, chapter 181, Oregon Laws 2021.

646A.542 Requirement to document compliance. Within 90 days after receiving a request from a city, county or special district that provides wastewater service, a covered entity shall submit to the city, county or special district business information and documentation that is not confidential and that demonstrates compliance with ORS 646A.540. The information must be written and organized for ease of comprehension. [2021 c.181 §2]

Note: 646A.542 becomes operative July 1, 2022. See section 4, chapter 181, Oregon Laws 2021.

646A.544 Local government enforcement; notice required; penalties. (1) A city, county or special district that provides wastewater service has exclusive and concurrent authority to enforce compliance with the requirements of ORS 646A.540. Selling, or displaying for sale, a product package that does not comply with the requirements of ORS 646A.540 is a violation for which the city, county or special district may bring an action to recover a civil penalty in the amounts set forth in subsection (2)(b) of this section. Selling, or displaying for sale, multiple units of the same noncompliant product package is part of the same violation.

(2)(a) Except as provided in paragraph (c) of this subsection, before bringing an action to recover a civil penalty for a violation, a city, county or special district that provides wastewater services shall send to the alleged violator a written notice of violation, dated with the date of mailing, and shall include a copy of the provisions of ORS 646A.540.

(b) If a covered entity sells or displays for sale a product package that does not comply with the requirements of ORS 646A.540 after receiving the notice described in paragraph (a) of this subsection, the city, county or special district may bring an action to recover:

(A) A civil penalty of not more than $2,000 for a first violation that occurs between 90 days and 120 days after the date of the notice;

(B) An additional civil penalty of not more than $5,000 for a second violation or for a first violation that continues for more than 120 days after the date of the notice; and

(C) An additional civil penalty of not more than $10,000 for a third and any subsequent violation or for a first violation that continues during any part of each 30-day period that follows the period described in subparagraph (B) of this paragraph.

(c) For the purposes of the notice requirement set forth in paragraph (a) of this subsection, a product package is the same product package, and the city, county or special district need not send a separate notice of violation, if within 90 days after the date of the notice the covered entity changes the product package in a manner that is unrelated to compliance with the requirements of ORS 646A.540.

(d) If a covered entity has paid a previous penalty for the same violation to another jurisdiction that has enforcement authority under this section, the penalty imposed on the covered entity must be reduced by the amount of the covered entity’s previous payment.

(3) A covered entity shall pay any civil penalty imposed under this section to the city, county or special district that brought the action to recover the civil penalty.

(4) In addition to the amount of any civil penalty imposed, a city, county or special district may recover reasonable enforcement costs and attorney fees. [2021 c.181 §3]

Note: 646A.544 becomes operative July 1, 2022. See section 4, chapter 181, Oregon Laws 2021.

LICENSES

646A.550 Short title. ORS 646A.555 may be cited as the Oregon Young Entrepreneurs Act. [2009 c.276 §1]

646A.555 License to engage in business activity not required for individual under 17 years of age. (1) Except as provided in subsection (2) of this section and notwithstanding any other provision of law, the State of Oregon, a political subdivision of the state or an agency of the state or of a political subdivision of the state may not require an individual under 17 years of age who is a resident of this state to obtain a license or permit to engage in a business activity in which the individual operates as a sole proprietor under the individual’s own name.

(2) This section does not affect a statute, rule, ordinance or other provision of law that requires a license, certificate, registration, permit or other authorization to conduct a business activity that is subject to regulation for the purpose of protecting the environment or the public health, safety or welfare. [2009 c.276 §2]

MERCURY IN LIGHTING PRODUCTS

646A.560 Legislative findings. The Legislative Assembly finds that it is in the best interest of this state to:

(1) Reduce the amount of mercury in lighting that contains mercury; and

(2) Continue to work with federal, state and local government agencies as well as manufacturers, retailers and others to expand opportunities for consumers to recycle lighting that contains mercury. [2012 c.52 §1]

646A.562 Definitions for ORS 646A.560 to 646A.566. As used in ORS 646A.560 to 646A.566:

(1) “Lighting that contains mercury” means an electric lamp, including compact fluorescent lamps, straight fluorescent lamps and nonlinear fluorescent lamps, to which mercury or mercury compounds are added during the manufacturing process.

(2) “Long lifetime” means 25,000 hours or more when tested on an electronic ballast, including T8 instant start ballasts and T5 programmed start ballasts, and turned off and on every three hours.

(3) “Normal lifetime” means less than 25,000 hours when tested on an electronic ballast, including T8 instant start ballasts and T5 programmed start ballasts, and turned off and on every three hours.

(4)(a) “Producer of lighting that contains mercury” means any person that:

(A) Manufactures and sells lighting that contains mercury under its own brand;

(B) Resells under its own brand lighting that contains mercury produced by other suppliers;

(D) Serves as the importer or domestic distributor of lighting that contains mercury if the brand name owner is located outside of the United States.

(b) “Producer of lighting that contains mercury” does not mean a reseller of lighting that contains mercury if the brand of the manufacturer of the lighting that contains mercury appears on the lighting.

(5) “Special purpose lighting” means appliance lighting, black lighting, germicidal lighting, bug lighting, colored lighting, plant lighting, straight fluorescent reflector lighting, reprographic lighting, shatter resistant lighting, cold temperature lighting and three-way lighting. [2012 c.52 §2]

646A.564 Standards for mercury content in electric lamps; exceptions. (1) A producer of lighting that contains mercury may not sell, offer for sale or distribute in this state any electric lamps that contain mercury in an amount exceeding, per lamp, the following mercury content standards:

(a) 4 milligrams for screw-based compact fluorescent lamps less than 25 watts.

(b) 5 milligrams for compact fluorescent lamps equal to or more than 25 watts and less than 40 watts.

(d) 4 milligrams for straight fluorescent T8 lamps with a normal lifetime.

(e) 5 milligrams for straight fluorescent T5 and T8 lamps with a long lifetime.

(f) 15 milligrams for T12 8-foot straight fluorescent lamps.

(2) The mercury content standard specified in subsection (1)(d) of this section does not apply to 8-foot models of straight fluorescent T8 lamps.

(3) The mercury content standards specified in subsection (1) of this section do not apply to:

(a) High-output, and very high-output, straight fluorescent lamps more than 32 millimeters in diameter.

(b) Mogul bi-pin based lamps.

(d) Special purpose lighting.

(e) High intensity discharge lamps. [2012 c.52 §3]

646A.566 Considerations for state agency procurement of lighting devices that contain mercury. When making procurement decisions on lighting that contains mercury, the Oregon Department of Administrative Services, after consultation with the Department of Environmental Quality, shall request information on mercury content, energy use, lumen output and lighting lifetime from potential suppliers and shall, in accordance with the Public Contracting Code and rules adopted under the Public Contracting Code, issue specifications and make procurement decisions that favor lighting that contains mercury that meets the mercury content standards established by ORS 646A.564. [2012 c.52 §4]

PORTABLE ELECTRONICS INSURANCE

646A.575 Definitions for ORS 646A.575 to 646A.590. As used in ORS 646A.575 to 646A.590:

(1) “Customer” means a person that purchases or leases portable electronics.

(2) “Enrolled customer” means a customer that purchases portable electronics insurance coverage from a vendor policyholder.

(3) “Insurer” means an insurer as defined in ORS 731.106 that issues, sells or offers for sale policies of portable electronics insurance to vendor policyholders.

(4) “Limited license” means a license that authorizes a vendor to issue, sell or offer for sale portable electronics insurance coverage.

(5) “Location” means a physical location in this state or a website, call center site or similar electronic or telephonic location where portable electronics may be purchased or leased.

(6) “Person” means an individual, partnership, corporation, incorporated or unincorporated association, joint stock company or any similar entity or combination of entities acting in concert.

(7) “Portable electronics” means an electronics device that is portable and includes accessories and services, including but not limited to wireless services, related to use of the device.

(8)(a) “Portable electronics insurance coverage” means insurance that provides coverage for the repair or replacement of portable electronics in the event of loss, theft, inoperability due to mechanical failure, malfunction, damage or need for repair or replacement as a result of some other covered source of peril.

(b) “Portable electronics insurance coverage” does not include:

(A) A service contract as defined in ORS 646A.152 that is governed by ORS 646A.150 to 646A.172;

(B) A warranty;

(D) A policy of insurance covering the obligations of a vendor or of a portable electronics manufacturer under a warranty.

(9) “Supervising entity” means an insurer as defined in ORS 731.106, or an insurance producer as defined in ORS 731.104, that may or may not issue, sell or offer for sale policies of portable electronics insurance to vendor policyholders.

(10) “Vendor” means a person engaged in the business of selling or leasing or offering for sale or lease portable electronics.

(11) “Vendor policyholder” means a vendor that holds a limited license under ORS 646A.577 and that has been issued a policy by an insurer or a supervising entity pursuant to which the vendor may issue, sell or offer for sale portable electronics insurance coverage to customers. [2011 c.393 §1]

646A.577 Limited license required; application; fee; renewal; prohibited representations. (1) A vendor may not issue, sell or offer for sale portable electronics insurance coverage unless the vendor has been issued a limited license by the Department of Consumer and Business Services under this section.

(2)(a) An application for a limited license under this section must be submitted on a form in accordance with paragraph (b) of this subsection and accompanied by a fee as prescribed by the department by rule.

(b) The application must, at a minimum, include:

(A) The name and street address of an employee, agent or authorized representative of the vendor who is the person designated by the vendor as being responsible for the vendor’s compliance with ORS 646A.575 to 646A.590; and

(B) The name and address in this state of a person designated by the vendor as the vendor’s agent upon whom may be served, in the manner described in ORS 59.155, at any time any process, notice or demand in a civil proceeding brought in connection with portable electronics insurance coverage, including a proceeding brought by the Director of the Department of Consumer and Business Services.

(c) A vendor licensed under this section shall annually update the contact information provided to the department under paragraph (b) of this subsection.

(3)(a) A limited license issued under this section is valid for two years unless suspended or revoked by the department.

(b) A limited license may be renewed upon expiration for another two-year period upon application of the vendor and payment of a fee as prescribed by the department by rule.

(4) A vendor licensed under this section may not advertise, represent or otherwise hold itself out as being licensed to sell any other type of insurance unless the vendor is actually licensed under the laws of this state to sell the other type of insurance. [2011 c.393 §2]

646A.580 Cost of coverage; billing requirements; remission to insurer or supervising entity; funds held in trust; compensation. (1) A vendor policyholder may bill and collect the cost of portable electronics insurance coverage purchased by an enrolled customer. Any charge to the enrolled customer for coverage that is not included in the cost to the enrolled customer to purchase or lease portable electronics must be separately itemized in writing. If the coverage is included with the purchase or lease of portable electronics, whether or not the coverage is included in the cost to the enrolled customer of the purchase or lease of the portable electronics, the vendor policyholder shall clearly and conspicuously disclose in writing to the enrolled customer that the coverage is included with the purchase or lease of the portable electronics.

(2) If authorized by an insurer or a supervising entity, a vendor policyholder that bills and collects the cost of portable electronics insurance coverage from an enrolled customer is not required to deposit the amount paid in a segregated account but shall remit the amount collected to the insurer or the supervising entity within 60 days of receipt from the enrolled customer.

(3) Moneys collected by a vendor policyholder from an enrolled customer for the cost of portable electronics insurance coverage are funds held by the vendor policyholder in trust for the benefit of the insurer or the supervising entity.

(4) A vendor policyholder may receive compensation from an insurer or a supervising entity for billing and collecting the cost of portable electronics insurance coverage purchased by enrolled customers.

(5) Vendor policyholders, insurers and supervising entities are not subject to ORS 744.083 and 744.084. [2011 c.393 §3]

646A.582 Written disclosure requirements. A vendor policyholder shall make available to prospective customers of portable electronics written materials that disclose:

(1) That portable electronics insurance coverage may duplicate coverage already held by the customer, including but not limited to homeowner’s insurance or renter’s insurance;

(2) That issuance of portable electronics insurance coverage is not required for the customer to purchase or lease portable electronics;

(3) The material terms of coverage, including but not limited to:

(a) The identity of and contact information for the insurer or the supervising entity that issued the insurance policy to the vendor policyholder;

(b) The amount of any applicable deductible and how the deductible is required to be paid when a claim is made;

(d) Whether the covered portable electronics will be repaired or replaced with a similar make and model, with a new or reconditioned device, accessory or part, or with a device, accessory or part from other than the original manufacturer;

(4) The process and requirements for returning portable electronics, and any fees that will apply in the event the enrolled customer does not comply with the process and requirements; and

(5) That the enrolled customer may cancel the portable electronics insurance coverage at any time and that the person paying the premium shall receive a refund of the unused portion of any amount that has been paid for coverage. A reasonable administrative fee may be charged in an amount not to exceed 10 percent of the refund due. [2011 c.393 §4]

646A.585 Exceptions to license requirement; prohibited representations; acts of employees. (1) An employee, agent or authorized representative of a vendor policyholder may issue, sell or offer for sale portable electronics insurance coverage to a customer without obtaining a limited license under ORS 646A.577 if:

(a) The vendor policyholder has been issued a limited license under ORS 646A.577; and

(b) The insurer or the supervising entity that issued a policy of portable electronics insurance to the vendor policyholder develops a training program for employees, agents and authorized representatives of the vendor policyholder that:

(A) Is completed by employees, agents and authorized representatives of the vendor policyholder who are directly engaged in the issuing, selling or offering for sale of portable electronics insurance coverage to customers;

(B) Includes basic instruction about portable electronics insurance coverage and the disclosures required under ORS 646A.582; and

(C) If delivered electronically, includes a supplementary education program that is conducted and overseen by employees of the insurer or the supervising entity.

(2) An employee, agent or authorized representative of a vendor policyholder who is authorized to issue, sell or offer for sale portable electronics insurance coverage under this section may not advertise, represent or otherwise hold themselves out as holding a limited license under ORS 646A.577 or being a licensed insurer or insurance producer as those terms are defined in ORS 731.104 and 731.106 unless the employee, agent or authorized representative has been issued a limited license or is licensed as an insurer or insurance producer under the laws of this state.

(3) The acts of an employee, agent or authorized representative of a vendor policyholder who is authorized to issue, sell or offer for sale portable electronics insurance coverage under this section are deemed to be the acts of the vendor policyholder for purposes of ORS 646A.575 to 646A.590. [2011 c.393 §5]

646A.588 Restrictions on modification or termination of coverage; notice; consent to notice. (1) Except as provided in subsections (2) and (3) of this section, an insurer or a supervising entity that issued a policy of portable electronics insurance to a vendor policyholder may not modify or terminate the terms and conditions of the policy unless the insurer or the supervising entity:

(a) Provides the vendor policyholder and enrolled customers with notice of the modification or termination not less than 30 days before the effective date of the modification or termination; and

(b) In the event of a modification only, provides:

(A) The vendor policyholder with a revised policy or endorsement that is evidence of the modification; and

(B) Each enrolled customer with a revised certificate, endorsement or other evidence of a change in terms and conditions, updated written materials and a summary of the material changes to the terms and conditions of coverage.

(2)(a) An insurer or a supervising entity may terminate an enrolled customer’s portable electronics insurance coverage:

(A) Upon discovering fraud or a material misrepresentation the enrolled customer made in obtaining the coverage or in presenting a claim; or

(B) For nonpayment of a premium.

(b) The insurer or the supervising entity must notify the enrolled customer at least 15 days before a termination under this subsection.

(3) An insurer or a supervising entity may immediately terminate an enrolled customer’s portable electronics insurance coverage if:

(a) The enrolled customer ceases to have active wireless service with the vendor policyholder; or

(b) The enrolled customer exhausts the aggregate limit of liability, and the insurer or the supervising entity sends notice of termination to the enrolled customer within 30 days after the enrolled customer exhausts the limit. If the insurer or the supervising entity does not send a timely notice of termination to the enrolled customer, notwithstanding the enrolled customer’s exhaustion of the limit, coverage continues until the insurer or the supervising entity sends the enrolled customer a notice of termination.

(4) A vendor policyholder that has issued portable electronics insurance coverage to an enrolled customer may not terminate the coverage unless the vendor policyholder provides the enrolled customer with notice of the termination not less than 30 days before the effective date of the termination. The supervising entity may provide notice under this subsection on the vendor policyholder’s behalf.

(5)(a) Notice or correspondence to a vendor policyholder that is required under this section, or that is otherwise required by law, may be sent as an electronic record.

(b) Notice or correspondence that this section or another provision of law requires to be sent to an enrolled customer may be sent as an electronic record if the enrolled customer agrees to receive notice or correspondence with respect to portable electronics insurance coverage by electronic means in accordance with ORS 84.001 to 84.061.

(A) In the case of a vendor policyholder, mailed or delivered to the vendor policyholder at the vendor policyholder’s principal place of business in this state; or

(B) In the case of an enrolled customer, mailed or delivered to the enrolled customer’s last known mailing address.

(d) An insurer, a supervising entity or a vendor policyholder that provides notice or sends correspondence under this section shall maintain proof of providing the notice or sending the correspondence for a minimum of three years after the termination of the portable electronics insurance coverage. Proof of mailing or delivery to the enrolled customer’s last known mailing address or electronic mailing address is sufficient proof of providing the notice or sending the correspondence. [2011 c.393 §6; 2013 c.97 §1; 2014 c.27 §1; 2017 c.450 §1]

646A.590 Rules. The Department of Consumer and Business Services shall adopt rules to carry out the provisions of ORS 646A.575 to 646A.590. [2011 c.393 §7]

646A.592 Enforcement. In addition to all other penalties and enforcement provisions provided by law, if a person violates a provision of ORS 646A.575 to 646A.590 or a rule adopted by the Department of Consumer and Business Services under ORS 646A.590, the department may:

(1) Suspend or revoke the person’s limited license issued under ORS 646A.577;

(2) Modify the terms of the person’s limited license issued under ORS 646A.577 to limit:

(a) The locations at which a vendor policyholder may issue, sell or offer for sale portable electronics insurance coverage; or

(b) The ability of employees, agents or authorized representatives of the vendor policyholder to issue, sell or offer for sale portable electronics insurance coverage; and

(3) Impose a civil penalty in the manner provided in ORS 183.745 not to exceed $1,000 per violation or $10,000 for multiple violations. [2011 c.393 §8]

IDENTITY THEFT PREVENTION

646A.600 Short title. ORS 646A.600 to 646A.628 shall be known as the Oregon Consumer Information Protection Act. [2007 c.759 §1; 2019 c.180 §1]

646A.602 Definitions for ORS 646A.600 to 646A.628. As used in ORS 646A.600 to 646A.628:

(1)(a) “Breach of security” means an unauthorized acquisition of computerized data that materially compromises the security, confidentiality or integrity of personal information that a person maintains or possesses.

(b) “Breach of security” does not include an inadvertent acquisition of personal information by a person or the person’s employee or agent if the personal information is not used in violation of applicable law or in a manner that harms or poses an actual threat to the security, confidentiality or integrity of the personal information.

(2) “Consumer” means an individual resident of this state.

(3) “Consumer report” means a consumer report as described in section 603(d) of the federal Fair Credit Reporting Act (15 U.S.C. 1681a(d)), as that Act existed on January 1, 2020, that a consumer reporting agency compiles and maintains.

(4) “Consumer reporting agency” means a consumer reporting agency as described in section 603(p) of the federal Fair Credit Reporting Act (15 U.S.C. 1681a(p)) as that Act existed on January 1, 2020.

(5)(a) “Covered entity” means a person that owns, licenses, maintains, stores, manages, collects, processes, acquires or otherwise possesses personal information in the course of the person’s business, vocation, occupation or volunteer activities.

(b) “Covered entity” does not include a person described in paragraph (a) of this subsection to the extent that the person acts solely as a vendor.

(6) “Debt” means any obligation or alleged obligation arising out of a consumer transaction.

(7) “Encryption” means an algorithmic process that renders data unreadable or unusable without the use of a confidential process or key.

(8) “Extension of credit” means a right to defer paying debt or a right to incur debt and defer paying the debt, that is offered or granted primarily for personal, family or household purposes.

(9) “Identity theft” has the meaning set forth in ORS 165.800.

(10) “Identity theft declaration” means a completed and signed statement that documents alleged identity theft, using a form available from the Federal Trade Commission, or another substantially similar form.

(11) “Person” means an individual, private or public corporation, partnership, cooperative, association, estate, limited liability company, organization or other entity, whether or not organized to operate at a profit, or a public body as defined in ORS 174.109.

(12)(a) “Personal information” means:

(A) A consumer’s first name or first initial and last name in combination with any one or more of the following data elements, if encryption, redaction or other methods have not rendered the data elements unusable or if the data elements are encrypted and the encryption key has been acquired:

(i) A consumer’s Social Security number;

(ii) A consumer’s driver license number or state identification card number issued by the Department of Transportation;

(iii) A consumer’s passport number or other identification number issued by the United States;

(iv) A consumer’s financial account number, credit card number or debit card number, in combination with any required security code, access code or password that would permit access to a consumer’s financial account, or any other information or combination of information that a person reasonably knows or should know would permit access to the consumer’s financial account;

(v) Data from automatic measurements of a consumer’s physical characteristics, such as an image of a fingerprint, retina or iris, that are used to authenticate the consumer’s identity in the course of a financial transaction or other transaction;

(vi) A consumer’s health insurance policy number or health insurance subscriber identification number in combination with any other unique identifier that a health insurer uses to identify the consumer; or

(vii) Any information about a consumer’s medical history or mental or physical condition or about a health care professional’s medical diagnosis or treatment of the consumer.

(B) A user name or other means of identifying a consumer for the purpose of permitting access to the consumer’s account, together with any other method necessary to authenticate the user name or means of identification.

(C) Any of the data elements or any combination of the data elements described in subparagraph (A) or (B) of this paragraph without the consumer’s user name, or the consumer’s first name or first initial and last name, if:

(i) Encryption, redaction or other methods have not rendered the data element or combination of data elements unusable; and

(ii) The data element or combination of data elements would enable a person to commit identity theft against a consumer.

(b) “Personal information” does not include information in a federal, state or local government record, other than a Social Security number, that is lawfully made available to the public.

(13) “Proper identification” means written information or documentation that a consumer or representative can present to another person as evidence of the consumer’s or representative’s identity, examples of which include:

(a) A valid Social Security number or a copy of a valid Social Security card;

(b) A certified or otherwise official copy of a birth certificate that a governmental body issued; and

(14) “Protected consumer” means an individual who is:

(a) Not older than 16 years old at the time a representative requests a security freeze on the individual’s behalf; or

(b) Incapacitated or for whom a court or other authority has appointed a guardian or conservator.

(15) “Protective record” means information that a consumer reporting agency compiles to identify a protected consumer for whom the consumer reporting agency has not prepared a consumer report.

(16) “Redacted” means altered or truncated so that no more than the last four digits of a Social Security number, driver license number, state identification card number, passport number or other number issued by the United States, financial account number, credit card number or debit card number is visible or accessible.

(17) “Representative” means a consumer who provides a consumer reporting agency with sufficient proof of the consumer’s authority to act on a protected consumer’s behalf.

(18) “Security freeze” means a notice placed in a consumer report at a consumer’s request or a representative’s request or in a protective record at a representative’s request that, subject to certain exemptions, prohibits a consumer reporting agency from releasing information in the consumer report or the protective record for an extension of credit, unless the consumer temporarily lifts the security freeze on the consumer’s consumer report or a protected consumer or representative removes the security freeze on or deletes the protective record.

(19) “Vendor” means a person with which a covered entity contracts to maintain, store, manage, process or otherwise access personal information for the purpose of, or in connection with, providing services to or on behalf of the covered entity. [2007 c.759 §2; 2013 c.415 §1; 2015 c.357 §1; 2018 c.10 §1; 2019 c.180 §2]

646A.604 Notice of breach of security; delay; methods of notification; contents of notice; application of notice requirement. (1) If a covered entity is subject to a breach of security or receives notice of a breach of security from a vendor, the covered entity shall give notice of the breach of security to:

(a) The consumer to whom the personal information pertains.

(b) The Attorney General, either in writing or electronically, if the number of consumers to whom the covered entity must send the notice described in paragraph (a) of this subsection exceeds 250.

(2)(a) A vendor that discovers a breach of security or has reason to believe that a breach of security has occurred shall notify a covered entity with which the vendor has a contract as soon as is practicable but not later than 10 days after discovering the breach of security or having a reason to believe that the breach of security occurred.

(b) If a vendor has a contract with another vendor that, in turn, has a contract with a covered entity, the vendor shall notify the other vendor of a breach of security as provided in paragraph (a) of this subsection.

(c) A vendor shall notify the Attorney General in writing or electronically if the vendor was subject to a breach of security that involved the personal information of more than 250 consumers or a number of consumers that the vendor could not determine. This paragraph does not apply to the vendor if the covered entity described in paragraph (a) or (b) of this subsection has notified the Attorney General in accordance with the requirements of this section.

(3)(a) A covered entity shall give notice of a breach of security in the most expeditious manner possible, without unreasonable delay, but not later than 45 days after discovering or receiving notification of the breach of security.

(b) Before providing the notice described in paragraph (a) of this subsection, a covered entity shall undertake reasonable measures that are necessary to:

(A) Determine sufficient contact information for the intended recipient of the notice;

(B) Determine the scope of the breach of security; and

(c) A covered entity may delay giving the notice described in paragraph (a) of this subsection only if a law enforcement agency determines that a notification will impede a criminal investigation and if the law enforcement agency requests in writing that the covered entity delay the notification.

(4) A covered entity may notify a consumer of a breach of security:

(a) In writing;

(b) Electronically, if the covered entity customarily communicates with the consumer electronically or if the notice is consistent with the provisions regarding electronic records and signatures set forth in the Electronic Signatures in Global and National Commerce Act (15 U.S.C. 7001) as that Act existed on January 1, 2020;

(d) With substitute notice, if the covered entity demonstrates that the cost of notification otherwise would exceed $250,000 or that the affected class of consumers exceeds 350,000, or if the covered entity does not have sufficient contact information to notify affected consumers. For the purposes of this paragraph, “substitute notice” means:

(A) Posting the notice or a link to the notice conspicuously on the covered entity’s website if the covered entity maintains a website; and

(B) Notifying major statewide television and newspaper media.

(5) Notice under this section must include, at a minimum:

(a) A description of the breach of security in general terms;

(b) The approximate date of the breach of security;

(d) Contact information for the covered entity;

(e) Contact information for national consumer reporting agencies; and

(f) Advice to the consumer to report suspected identity theft to law enforcement, including the Attorney General and the Federal Trade Commission.

(6) If a covered entity discovers or receives notice of a breach of security that affects more than 1,000 consumers, the covered entity shall notify, without unreasonable delay, all consumer reporting agencies that compile and maintain reports on consumers on a nationwide basis of the timing, distribution and content of the notice the covered entity gave to affected consumers and shall include in the notice any police report number assigned to the breach of security. A covered entity may not delay notifying affected consumers of a breach of security in order to notify consumer reporting agencies.

(7)(a) If a covered entity must notify a consumer of a breach of security under this section, and in connection with the notification the covered entity or an agent or affiliate of the covered entity offers to provide credit monitoring services or identity theft prevention and mitigation services without charge to the consumer, the covered entity, the agent or the affiliate may not condition the provision of the services on the consumer’s providing the covered entity, the agent or the affiliate with a credit or debit card number or on the consumer’s acceptance of any other service the covered entity offers to provide for a fee.

(b) If a covered entity or an agent or affiliate of the covered entity offers additional credit monitoring services or identity theft prevention and mitigation services for a fee to a consumer under the circumstances described in paragraph (a) of this subsection, the covered entity, the agent or the affiliate must separately, distinctly, clearly and conspicuously disclose in the offer for the additional credit monitoring services or identity theft prevention and mitigation services that the covered entity, the agent or the affiliate will charge the consumer a fee.

(c) The terms and conditions of any contract under which one person offers or provides credit monitoring services or identity theft prevention and mitigation services on behalf of another person under the circumstances described in paragraph (a) of this subsection must require compliance with the requirements of paragraphs (a) and (b) of this subsection.

(8) Notwithstanding subsection (1) of this section, a covered entity does not need to notify consumers of a breach of security if, after an appropriate investigation or after consultation with relevant federal, state or local law enforcement agencies, the covered entity reasonably determines that the consumers whose personal information was subject to the breach of security are unlikely to suffer harm. The covered entity must document the determination in writing and maintain the documentation for at least five years.

(9) This section does not apply to:

(a) Personal information that is subject to, and a person that complies with, notification requirements or procedures for a breach of security that the person’s primary or functional federal regulator adopts, promulgates or issues in rules, regulations, procedures, guidelines or guidance, if the personal information and the person would otherwise be subject to ORS 646A.600 to 646A.628.

(b) Personal information that is subject to, and a person that complies with, a state or federal law that provides greater protection to personal information and disclosure requirements at least as thorough as the protections and disclosure requirements provided under this section.

(c) A covered entity or vendor that complies with regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as that Act existed on January 1, 2020, if personal information that is subject to ORS 646A.600 to 646A.628 is also subject to that Act.

(d) A covered entity or vendor that complies with regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191, 110 Stat. 1936) and the Health Information Technology for Economic and Clinical Health Act of 2009 (P.L. 111-5, Title XIII, 123 Stat. 226), as those Acts existed on January 1, 2020, if personal information that is subject to ORS 646A.600 to 646A.628 is also subject to those Acts.

(10) Notwithstanding the exemptions set forth in subsection (9) of this section, a person, a covered entity or a vendor shall provide to the Attorney General within a reasonable time at least one copy of any notice the person, the covered entity or the vendor sends to consumers or to the person’s, the covered entity’s or the vendor’s primary or functional regulator in compliance with this section or with other state or federal laws or regulations that apply to the person, the covered entity or the vendor as a consequence of a breach of security, if the breach of security affects more than 250 consumers.

(11)(a) A person’s violation of a provision of ORS 646A.600 to 646A.628 is an unlawful practice under ORS 646.607.

(b) A covered entity or vendor in an action or proceeding may affirmatively defend against an allegation that the covered entity or vendor has not developed, implemented and maintained reasonable safeguards to protect the security, confidentiality and integrity of personal information that is subject to ORS 646A.600 to 646A.628 but is not subject to an Act described in subsection (9)(c) or (d) of this section by showing that, with respect to the personal information that is subject to ORS 646A.600 to 646A.628, the covered entity or vendor developed, implemented and maintained reasonable security measures that would be required for personal information subject to the applicable Act.

(c) The rights and remedies available under this section are cumulative and are in addition to any other rights or remedies that are available under law. [2007 c.759 §3; 2015 c.357 §2; 2018 c.10 §2; 2019 c.180 §3]

646A.606 Security freeze; requirements; proof of authority; effect. (1) A consumer may elect to place a security freeze on the consumer’s consumer report or, if the consumer is a representative, on a protected consumer’s consumer report or protective record by sending a written request to a consumer reporting agency at an address the agency designates to receive such requests, or a secure electronic request at a website the agency designates to receive such requests if the consumer reporting agency, at the agency’s discretion, makes a secure electronic method available.

(2) If the consumer or protected consumer is the victim of identity theft or has reported a theft of personal information to a law enforcement agency, the consumer or representative may include a copy of the police report, incident report or identity theft declaration.

(3)(a) The consumer or representative must provide proper identification.

(b)(A) In addition to the information described in paragraph (a) of this subsection, a representative who seeks to place a security freeze on a protected consumer’s consumer report or protective record shall provide sufficient proof of the representative’s authority to act on the protected consumer’s behalf.

(B) For purposes of subparagraph (A) of this paragraph, sufficient proof of authority consists of:

(i) A court order that identifies or describes the relationship between the representative and the protected consumer;

(ii) A valid and lawfully executed power of attorney that permits the representative to act on the protected consumer’s behalf; or

(iii) A written affidavit that the representative signs and has notarized in which the representative expressly describes the relationship between the representative and the protected consumer and the representative’s authority to act on the protected consumer’s behalf.

(4)(a) Except as provided in ORS 646A.614, if a security freeze is in place for a consumer report, information from the consumer report may not be released without prior express authorization from the consumer.

(b) Information from a protective record may not be released until the protected consumer for whom the consumer reporting agency created the protective record, or a representative of the protected consumer, removes the security freeze.

(5) This section does not prevent a consumer reporting agency from advising a third party that a security freeze is in effect with respect to the consumer report or protective record. [2007 c.759 §4; 2013 c.415 §2; 2018 c.10 §3]

646A.608 Deadline for placing security freeze; protective record creation; use and release of information; confirmation; personal identification number; exception; lifting and removal. (1)(a) A consumer reporting agency shall place a security freeze on a consumer report not later than five business days after receiving from a consumer:

(A) The request described in ORS 646A.606 (1); and

(B) Proper identification.

(b) If a consumer report does not exist for a protected consumer on behalf of whom a representative seeks to place a security freeze, a consumer reporting agency shall create a protective record after receiving from the representative the request described in ORS 646A.606 (1), proper identification for both the representative and the protected consumer and sufficient proof of authority, as described in ORS 646A.606 (3)(b). After creating a protective record for a protected consumer under this paragraph, the consumer reporting agency shall place the security freeze that the representative requested on the protected consumer’s protective record.

(c) The protective record that the consumer reporting agency creates under paragraph (b) of this subsection does not need to contain any information other than the protected consumer’s personal information, if other information for the protected consumer is not available. Except as provided in ORS 646A.614, a consumer reporting agency may not use or release to another person the information in a protective record for the purpose of assessing a protected consumer’s eligibility or capacity for an extension of credit, as a basis for evaluating a protected consumer’s character, reputation or personal characteristics or for other purposes that are not related to protecting the protected consumer from identity theft.

(2)(a) A consumer reporting agency shall send a written confirmation of a security freeze on a consumer’s consumer report to the consumer at the last known address for the consumer shown in the consumer report that the consumer reporting agency maintains, within 10 business days after placing the security freeze and, with the confirmation, shall provide the consumer with a unique personal identification number or password or similar device the consumer must use to authorize the consumer reporting agency to release the consumer’s consumer report for a specific period of time or to permanently remove the security freeze. The consumer reporting agency shall include with the written confirmation information that describes how to remove a security freeze and how to temporarily lift a security freeze on a consumer report, other than a consumer report for a protected consumer, in order to allow access to information from the consumer’s consumer report for a period of time while the security freeze is in place.

(b) This subsection does not require a consumer reporting agency to provide a consumer or representative with a personal identification number or password for the consumer or representative to use to authorize the consumer reporting agency to release information from a protective record.

(3)(a) If a consumer wishes to allow the consumer’s consumer report to be accessed for a specific period of time while a security freeze is in effect, the consumer shall contact the consumer reporting agency using a point of contact the consumer reporting agency designates, request that the security freeze be temporarily lifted and provide the following:

(A) Proper identification;

(B) The unique personal identification number or password or similar device the consumer reporting agency provided under subsection (2) of this section; and

(C) An indication of the period of time during which the consumer report must be available to users of the consumer report.

(b) A protective record is not subject to a temporary lift of a security freeze.

(c) Except as provided in ORS 646A.612 (2)(a), a consumer report for a protected consumer is not subject to a temporary lift of a security freeze.

(4) A consumer reporting agency that receives a request from a consumer to temporarily lift a security freeze on a consumer report, other than a consumer report for a protected consumer, under subsection (3) of this section shall comply with the request not later than three business days after receiving from the consumer:

(a) Proper identification;

(b) The unique personal identification number or password or similar device the consumer reporting agency provided under subsection (2) of this section; and

(c) An indication of the period of time during which the consumer report must be available to users of the consumer report.

(5)(a) A security freeze for a consumer report must remain in place until the consumer requests, using a point of contact the consumer reporting agency designates, that the security freeze be removed. A consumer reporting agency shall remove a security freeze within three business days after receiving a request for removal from the consumer, who provides:

(A) Proper identification; and

(B) The unique personal identification number or password or similar device the consumer reporting agency provided under subsection (2) of this section.

(b) A security freeze for a protective record must remain in place until the protected consumer or a representative requests, using a point of contact the consumer reporting agency designates, that the security freeze be removed or that the protective record be deleted. The consumer reporting agency does not have an affirmative duty to notify the protected consumer or the representative that a security freeze is in place or to remove the security freeze or delete the protective record once the protected consumer is no longer a protected consumer. A protected consumer or a representative has the affirmative duty to request that the consumer reporting agency remove the security freeze or delete the protective record. A consumer reporting agency shall remove a security freeze or delete a protective record within 30 business days after receiving a request for removal or deletion from the protected consumer or a representative, who provides:

(A) Proper identification;

(B) Sufficient proof of authority, as described in ORS 646A.606 (3)(b), if the representative seeks to remove the security freeze or delete the protective record; and

(C) Proof that the representative’s authority to act on the protected consumer’s behalf is no longer valid or applicable, if the protected consumer seeks to remove the security freeze or delete the protective record. [2007 c.759 §5; 2013 c.415 §3; 2018 c.10 §4]

646A.610 Fees not permitted. A consumer reporting agency may not charge a consumer a fee or collect from a consumer any money or item of value for:

(1) Placing, temporarily lifting or removing a security freeze on the consumer’s consumer report.

(2) Creating or deleting a protective record.

(3) Placing or removing a security freeze on a protective record for a protected consumer.

(4) Replacing a lost personal identification number, password or similar device the consumer reporting agency previously provided to the consumer. [2007 c.759 §6; 2013 c.415 §4; 2018 c.10 §5]

646A.612 Conditions for lifting or removing security freeze. (1)(a) A consumer reporting agency shall temporarily lift or remove a security freeze placed on a consumer report only if a consumer requests that the consumer reporting agency lift or remove the security freeze for the consumer report in accordance with ORS 646A.608.

(b) A consumer reporting agency shall remove a security freeze from a protected consumer’s consumer report or protective record or delete a protective record only if the protected consumer or a representative requests that the consumer reporting agency remove the security freeze from the consumer report or protective record or delete the protective record in accordance with ORS 646A.608.

(2)(a) A consumer reporting agency may temporarily lift or remove a security freeze placed on a consumer report if the security freeze was placed because of a consumer’s, a protected consumer’s or a representative’s material misrepresentation of fact.

(b) A consumer reporting agency may remove a security freeze from or delete a protective record if the consumer reporting agency placed the security freeze or created the protective record as a result of the protected consumer’s or the representative’s material misrepresentation of fact.

(c) If a consumer reporting agency intends to remove a security freeze or delete a protective record under this subsection, the consumer reporting agency shall notify the consumer, protected consumer or representative, as appropriate, in writing at least five business days before removing the security freeze or deleting the protective record. [2007 c.759 §7; 2013 c.415 §5]

646A.614 Effect of security freeze on use of consumer reports or protective records. (1) The provisions of ORS 646A.606 to 646A.610 do not apply to the use of a consumer report or a protective record by or for any of the following:

(a) A person, or the person’s subsidiary, affiliate, agent or assignee with which the consumer or protected consumer has or, prior to assignment, had an account, contract or debtor-creditor relationship for the purposes of reviewing the account or collecting the financial obligation owing for the account, contract or debtor-creditor relationship. For purposes of this subsection, “reviewing the account” includes activities related to account maintenance, monitoring, credit line increases and account upgrades and enhancements.

(b) Any person acting pursuant to a judgment, court order, warrant or subpoena.

(c) A federal, state or local governmental entity, a law enforcement agency or court, or an agent or assignee of the federal, state or local governmental entity, law enforcement agency or court, for the purpose of investigating fraud or investigating or collecting delinquent taxes, unpaid judgments or court orders or acting otherwise to fulfill statutory or regulatory duties, if the activities or statutory or regulatory duties are consistent with a permissible purpose under section 604 of the federal Fair Credit Reporting Act (15 U.S.C. 1681b) as that Act existed on October 1, 2007.

(d) The use of credit information for the purposes of prescreening in accordance with the federal Fair Credit Reporting Act (15 U.S.C. 1681 et seq.) as that Act existed on October 1, 2007.

(e) Any person for the sole purpose of providing a credit file monitoring subscription service, or similar service to which the consumer or protected consumer has subscribed or to which a representative has subscribed on behalf of the protected consumer.

(f) A consumer reporting agency for the sole purpose of providing a consumer, a protected consumer or a representative with a copy of the consumer’s or protected consumer’s consumer report upon the consumer’s, protected consumer’s or representative’s request.

(g) Any person or entity for the purpose of setting or adjusting rates, for handling claims or underwriting for insurance purposes, to the extent permitted by law.

(h) A subsidiary, affiliate, agent, assignee or prospective assignee of a person to whom access has been granted under ORS 646A.608 (3) for purposes of facilitating the extension of credit or other permissible use.

(i) A child support agency acting pursuant to Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.) as that Act existed on October 1, 2007.

(j) A person for the sole purpose of screening an applicant for a residential dwelling unit as described in ORS 90.295 (1).

(2) The provisions of ORS 646A.606 to 646A.610 do not apply to a protective record used:

(a) By an entity listed in ORS 646A.618 (2); or

(b) For purposes other than an extension of credit, including:

(A) Compiling a criminal record;

(B) Detecting or preventing fraud;

(D) Screening an applicant for employment, tenancy or other background checking purposes. [2007 c.759 §8; 2013 c.415 §6]

646A.616 Effect of request for consumer report subject to security freeze. If a third party requests access to a consumer report on which a security freeze is in effect, the request is in connection with an application for credit or any other use, the consumer does not allow the consumer’s consumer report to be accessed for that period of time, and the third party cannot obtain the consumer report through ORS 646A.614, the third party may treat the application as incomplete. [2007 c.759 §9]

646A.618 Prohibition on changes to consumer report subject to security freeze; entities subject to requirement to place security freeze. (1) If a security freeze is in place, a consumer reporting agency shall not change any of the following official information in a consumer credit report without sending a written confirmation of the change to the consumer within 30 days of the change being posted to the consumer’s report: name, date of birth, Social Security number and address. Written confirmation is not required for technical modifications of a consumer’s official information, including name and street abbreviations, complete spellings or transposition of numbers or letters. In the case of an address change, the written confirmation shall be sent to both the new address and to the former address.

(2) The following entities are not required to place a security freeze on a credit report:

(a) A consumer reporting agency that acts only as a reseller of credit information by assembling and merging information contained in the database of another consumer reporting agency or multiple consumer reporting agencies, and does not maintain a database of credit information from which new consumer credit reports are produced. However, a consumer reporting agency acting as a reseller shall honor any security freeze placed on a consumer report by another consumer reporting agency.

(b) A check services or fraud prevention services company that issues reports on incidents of fraud or authorizations for the purpose of approving or processing negotiable instruments, electronic funds transfers or similar methods of payments.

(c) A deposit account information service company that issues reports regarding account closures due to fraud, substantial overdrafts, ATM abuse or similar negative information regarding a consumer, to inquiring banks or other financial institutions for use only in reviewing a consumer request for a deposit account at the inquiring bank or financial institution. [2007 c.759 §10]

646A.620 Prohibition on printing, displaying or posting Social Security numbers; exemptions. (1) Except as otherwise specifically provided by law, a person may not:

(a) Print a consumer’s Social Security number on mail to the consumer that is:

(A) Material the consumer did not request; or

(B) Part of any documentation the consumer requested for a transaction or service, unless the Social Security number is redacted.

(b) Print a consumer’s Social Security number on any card required for the consumer to access products or services provided by the person.

(c) Publicly post or publicly display a consumer’s Social Security number unless the Social Security number is redacted. As used in this paragraph, “publicly post or publicly display” means to communicate or otherwise make available to the public.

(d) Dispose of, or transfer to another person for disposal, material or media that display a consumer’s Social Security number unless the person makes the Social Security number unreadable or unrecoverable or ensures that any person that ultimately disposes of the material or media makes the Social Security number unreadable or unrecoverable.

(2) This section does not prevent the collection, use or release of a Social Security number as required by state or federal law or rule adopted by the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court and does not prevent the use or printing of a Social Security number for internal verification or administrative purposes or to enforce a judgment or court order.

(3) This section does not apply to records that must be made available to the public under state or federal law or rule adopted by the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals or the judge of the Oregon Tax Court.

(4) This section does not apply to a Social Security number in any of the following records or copies of records in any form or storage medium maintained or otherwise possessed by a court, the State Court Administrator or the Secretary of State:

(a) A record received on or before October 1, 2007;

(b) A record received after October 1, 2007, if, by state or federal statute or rule, the person that submitted the record could have caused the record to be filed or maintained in a manner that protected the Social Security number from public disclosure; or

(A) An accusatory instrument charging a violation or crime;

(B) A record of oral proceedings in a court;

(D) A judgment or court order. [2007 c.759 §11; 2017 c.254 §1]

646A.622 Requirement to develop safeguards for personal information; conduct deemed to comply with requirement; defenses. (1) A covered entity and a vendor shall develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of personal information, including safeguards that protect the personal information when the covered entity or vendor disposes of the personal information.

(2) A covered entity or vendor complies with subsection (1) of this section if the covered entity or vendor:

(a) Complies with a state or federal law that provides greater protection to personal information than the protections that this section provides.

(b) Complies with regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. 6801 to 6809) as in effect on January 1, 2020, if personal information that is subject to ORS 646A.600 to 646A.628 is also subject to the Act.

(c) Complies with regulations that implement the Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. parts 160 and 164) and the Health Information Technology for Economic and Clinical Health Act of 2009 (P.L. 111-5, Title XIII, 123 Stat. 226), as those Acts were in effect on January 1, 2020, if personal information that is subject to ORS 646A.600 to 646A.628 is also subject to those Acts.

(d) Implements an information security program that includes:

(A) Administrative safeguards such as:

(i) Designating one or more employees to coordinate the security program;

(ii) Identifying reasonably foreseeable internal and external risks with reasonable regularity;

(iii) Assessing whether existing safeguards adequately control the identified risks;

(iv) Training and managing employees in security program practices and procedures with reasonable regularity;

(v) Selecting service providers that are capable of maintaining appropriate safeguards and practices, and requiring the service providers by contract to maintain the safeguards and practices;

(vi) Adjusting the security program in light of business changes, potential threats or new circumstances; and

(vii) Reviewing user access privileges with reasonable regularity;

(B) Technical safeguards such as:

(i) Assessing risks and vulnerabilities in network and software design and taking reasonably timely action to address the risks and vulnerabilities;

(ii) Applying security updates and a reasonable security patch management program to software that might reasonably be at risk of or vulnerable to a breach of security;

(iii) Monitoring, detecting, preventing and responding to attacks or system failures; and

(iv) Regularly testing, monitoring and taking action to address the effectiveness of key controls, systems and procedures; and

(i) Assessing, in light of current technology, risks of information collection, storage, usage, retention, access and disposal and implementing reasonable methods to remedy or mitigate identified risks;

(ii) Monitoring, detecting, preventing, isolating and responding to intrusions timely and with reasonable regularity;

(iii) Protecting against unauthorized access to or use of personal information during or after collecting, using, storing, transporting, retaining, destroying or disposing of the personal information; and

(iv) Disposing of personal information, whether the covered entity or vendor disposes of the personal information on or off the covered entity’s or vendor’s premises or property, after the covered entity or vendor no longer needs the personal information for business purposes or as required by local, state or federal law by burning, pulverizing, shredding or modifying a physical record and by destroying or erasing electronic media so that the information cannot be read or reconstructed.

(3) A covered entity or vendor complies with subsection (2)(d)(C)(iv) of this section if the covered entity or vendor contracts with another person engaged in the business of record destruction to dispose of personal information in a manner that is consistent with subsection (2)(d)(C)(iv) of this section.

(4) A covered entity or vendor in an action or proceeding may affirmatively defend against an allegation that the covered entity or vendor has not complied with subsection (1) of this section with respect to personal information that is subject to ORS 646A.600 to 646A.628 but is not subject to an Act described in subsection (2)(b) or (c) of this section by showing that, with respect to the personal information that is subject to ORS 646A.600 to 646A.628, the covered entity or vendor developed, implemented and maintained reasonable security measures that would be required for personal information subject to the applicable Act.

(5) Notwithstanding subsection (2) of this section, a person that is an owner of a small business as defined in ORS 285B.123 (2) complies with subsection (1) of this section if the person’s information security and disposal program contains administrative, technical and physical safeguards and disposal measures that are appropriate for the size and complexity of the small business, the nature and scope of the small business’s activities, and the sensitivity of the personal information the small business collects from or about consumers. [2007 c.759 §12; 2015 c.357 §3; 2018 c.10 §6; 2019 c.180 §4]

646A.624 Powers of director; penalties. (1) The Director of the Department of Consumer and Business Services may:

(a) Make such public or private investigations within or outside this state as the director deems necessary to determine whether a person has violated any provision of ORS 646A.600 to 646A.628, or to aid in the enforcement of ORS 646A.600 to 646A.628.

(b) Require or permit a person to file a statement in writing, under oath or otherwise as the director determines, as to all the facts and circumstances concerning the matter to be investigated.

(c) Administer oaths and affirmations, subpoena witnesses, compel attendance, take evidence and require the production of books, papers, correspondence, memoranda, agreements or other documents or records that the director deems relevant or material to the inquiry. Each witness who appears before the director under a subpoena shall receive the fees and mileage provided for witnesses in ORS 44.415 (2).

(2) If a person fails to comply with a subpoena so issued or a party or witness refuses to testify on any matters, the judge of the circuit court or of any county, on the application of the director, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein.

(3) If the director has reason to believe that any person has engaged or is engaging in any violation of ORS 646A.600 to 646A.628, the director may issue an order, subject to ORS chapter 183, directed to the person to cease and desist from the violation, or require the person to pay compensation to consumers injured by the violation. The director may order compensation to consumers only upon a finding that enforcement of the rights of the consumers by private civil action would be so burdensome or expensive as to be impractical.

(4)(a) In addition to all other penalties and enforcement provisions provided by law, any person who violates or who procures, aids or abets in the violation of ORS 646A.600 to 646A.628 shall be subject to a penalty of not more than $1,000 for every violation, which shall be paid to the General Fund of the State Treasury.

(b) Every violation is a separate offense and, in the case of a continuing violation, each day’s continuance is a separate violation, but the maximum penalty for any occurrence shall not exceed $500,000.

646A.626 Rules. In accordance with ORS chapter 183, the Director of the Department of Consumer and Business Services may adopt rules for the purpose of carrying out the provisions of ORS 646A.600 to 646A.628. [2007 c.759 §14]

646A.628 Allocation of moneys. Notwithstanding ORS 705.145 (2), (3) and (5), the Director of the Department of Consumer and Business Services can allocate as deemed appropriate the moneys derived pursuant to ORS 86A.095 to 86A.198, 86A.990, 86A.992, 650.005 to 650.100, 697.005 to 697.095, 697.602 to 697.842, 705.350 and 717.200 to 717.320 and 731.804 and ORS chapters 59, 645, 706 to 716, 723, 725 and 726 to implement ORS 646A.600 to 646A.628. [2007 c.759 §15; 2009 c.541 §23; 2009 c.604 §24]

(Temporary provisions relating to collection of personal health data in connection with COVID-19 exposure)

Note: Sections 1, 4 and 5, chapter 305, Oregon Laws 2021, provide:

Sec. 1. (1) As used in this section:

(a)(A) “Affirmative express consent” means an affirmative act by a resident individual that clearly and conspicuously communicates the resident individual’s authorization for a covered organization to perform an act or practice.

(B) “Affirmative express consent” does not include a resident individual’s acceptance of a general or broad terms of use document, or similar document, that contains descriptions of personal health data collection along with other unrelated information.

(b)(A) “Covered organization” means a person that collects, uses or discloses personal health data or that develops or operates a website, web application, mobile application, mobile operating system feature or other electronic method by means of which the person may collect, use or disclose personal health data.

(B) “Covered organization” does not include:

(i) A member of the resident individual’s household;

(ii) An agency, employee, agent, designee, affiliate, associate or contractor of a federal, state, local or tribal governmental body that under legal authorization and for public health purposes, including preventing disease, injury or disability, may collect, receive, observe, discover or investigate personal health data;

(iii) A health care provider, as defined in ORS 433.443; or

(iv) A covered entity or business associate, both as defined in 45 C.F.R. 160.103, as in effect on the effective date of this 2021 Act [June 15, 2021], to the extent that the covered entity or business associate is engaged in activities that are subject to regulation under the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, or regulations adopted under the Act and codified as 45 C.F.R. parts 160 and 164, as in effect on the effective date of this 2021 Act.

(c) “Disclose” means to release, transfer, sell, share, provide access to, license or otherwise divulge to another person.

(d) “Emergency period” means a period that begins on the date on which the Governor has declared an emergency related to the COVID-19 pandemic and ends on a date 180 days after the Governor terminates the declaration or the declaration expires.

(e)(A) “Geolocation data” means information generated by or derived from technology that directly identifies the location of a natural person within a geographic area that is equal to or less than the area of a circle with a radius of 1,850 feet, including but not limited to:

(i) Level latitude and longitude coordinates from a global positioning system;

(ii) Cell site-location information; and

(iii) Triangulation data derived from nearby wireless or radio frequency networks.

(B) “Geolocation data” does not include the content of communications.

(f)(A) “Personal health data” means information that is collected for the purpose of tracking, monitoring or tracing exposures to or infections by SARS-CoV-2 or development of disease conditions caused by or related to COVID-19 and that identifies or can reasonably be used to identify a resident individual and associate the resident individual’s personal identity with:

(i) Exposure to or infection by SARS-CoV-2 or development of symptoms of or a disease condition caused by or related to COVID-19;

(ii) Tests or examinations or requests for tests and examinations for exposure to SARS-CoV-2, including tests or examinations of body parts or bodily substances;

(iii) Receipt of medical care or medical services related to exposure to SARS-CoV-2 or symptoms or development of COVID-19;

(iv) Predisposition toward developing a disease condition that results from exposure to or infection by SARS-CoV-2;

(v) Whether the resident individual has received a vaccination against COVID-19; or

(vi) Other data, including geolocation data, that tracks, monitors or traces a resident individual’s exposure to or infection by SARS-CoV-2 or development of a disease condition caused by or related to COVID-19.

(B) “Personal health data” does not include information about a resident individual that:

(i) Is lawfully available to the public from federal, state or local government records or widely available to the public from sources such as telephone directories, the internet, news media or similar or related sources;

(ii) Was collected before the emergency period for purposes other than tracking, monitoring or tracing a resident individual’s exposure to or infection by SARS-CoV-2 or development of a disease condition caused by or related to COVID-19;

(iii) Has been deidentified in accordance with 45 C.F.R. 164.514(b), as in effect on the effective date of this 2021 Act;

(iv) Was collected in an employment context; or

(v) Is collected after the expiration or termination of the emergency period.

(g) “Resident individual” means a natural person who resides in this state.

(h) “Service provider” means a person that collects, uses or discloses personal health data solely for the purpose of providing business services to, on behalf of, or for the benefit of a covered organization in accordance with instructions or direction from, or under the terms and conditions of a contract with, the covered organization.

(2)(a) Except as provided in paragraph (b) of this subsection, a covered organization may not collect, use or disclose personal health data about a resident individual who has not given affirmative express consent to the covered organization’s collection, use or disclosure of the resident individual’s personal health data. In obtaining affirmative express consent from a resident individual, a covered organization may not:

(A) Use a method that is designed with the purpose of, or that has the substantial effect of, subverting or impairing a resident individual’s decision-making or choice; and

(B) Infer consent from a resident individual’s inaction.

(b) A covered organization may collect, use or disclose personal health data without a resident individual’s affirmative express consent if the collection, use or disclosure is necessary solely to comply with a legal obligation.

(3) A resident individual may give affirmative express consent to a collection, use or disclosure of personal health data on behalf of another resident individual who is younger than 14 years of age if the resident individual is a parent or legal guardian of the other resident individual.

(4)(a) Except as provided in paragraph (b) of this subsection, a covered organization may not retain, store or use and shall destroy, delete or, if appropriate, render inaccessible to any person in any manner personal health data that the covered organization collects, stores, uses, possesses or controls not later than 65 days after the covered organization collected, received or otherwise obtained the personal health data.

(b) A covered organization may use and need not destroy, delete or render inaccessible personal health data if:

(A) The personal health data consists of aggregations, statistical analyses, compilations or interpretations; and

(B) The covered organization deidentifies the personal health data in accordance with 45 C.F.R. 164.514(b), as in effect on the effective date of this 2021 Act.

(5) A covered organization shall collect, use, receive, process, examine, disclose or collate only personal health data that is reasonably necessary to provide services to the resident individual to whom the personal health data applies, and shall:

(a) Take reasonable measures to ensure the accuracy of the personal health data and provide an accessible and effective method for a resident individual to correct any inaccuracies, as appropriate for the nature of the personal health data and the context in which the covered organization collected or received the personal health data;

(b) Establish and implement safeguards for personal health data that comply, at a minimum, with the requirements of ORS 646A.622 and require service providers by contract to comply with this section and the requirements of ORS 646A.622;

(c) Establish and implement policies and procedures that prevent the covered organization from using personal health data for any discriminatory purpose;

(d) Provide an easily accessible and effective method by which a resident individual may revoke any affirmative express consent the resident individual gave previously;

(e) Adopt, implement and provide to each resident individual from whom the covered organization collects, or about whom the covered organization receives, personal health data a clear, understandable and conspicuous disclosure of policies and procedures in compliance with which the covered organization collects, receives or otherwise obtains personal health data that, at a minimum, must include:

(A) The manner in which and the purposes for which the covered organization collects, receives, processes, examines, analyzes, collates, discloses, transfers, stores, retains or makes use of personal health data;

(B) Categories of persons to which the covered organization does or may disclose personal health data or from which the covered organization does or may receive or obtain personal health data; and

(C) A statement that informs the resident individual that and how the resident individual may provide, refuse to provide or revoke affirmative express consent;

(f) Cease the covered organization’s collection, receipt or use of a resident individual’s personal health data not later than 21 days after receiving from the resident individual a revocation of affirmative express consent; and

(g) Compile, not later than 30 days after the effective date of this 2021 Act and during each period of 60 days thereafter, and retain for a period of not less than five years after the expiration or termination of the emergency period, subject to an audit by the Oregon Health Authority, a series of reports that:

(A) States the number of resident individuals from or about whom the covered organization collected, received or otherwise obtained personal health data;

(B) Describes the categories of personal health data the covered organization collected, received or otherwise obtained and the specific purpose for which the covered organization collected, received or obtained the personal health data; and

(6) A covered organization may not collect, use or disclose personal health data for a purpose that this section does not expressly authorize, including for:

(a) Commercial advertising;

(b) Recommendations or reviews related to electronic commerce; or

(c) Training machine learning algorithms related to or for subsequent use in commercial advertising or electronic commerce.

(7) This section does not limit or prohibit:

(a) A university or other institution of higher education or a nonprofit corporation, as defined in ORS 65.001, from conducting scientific research or a public health program or from developing vaccinations, medications or treatments related to COVID-19 that are otherwise authorized by law;

(b) A covered organization from complying with a federal or state law, a court order, subpoena or other legal process that requires the covered organization or a service provider to disclose personal health data; or

(c) A covered organization from maintaining, retaining or storing other information in compliance with federal or state law.

(8) This section does not modify or affect a covered organization’s obligation to comply with the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191, as in effect on the effective date of this 2021 Act, with regulations adopted under the Act or with ORS 192.553 to 192.581, if applicable.

(9) A covered organization’s violation of a provision of this section is an unlawful practice under ORS 646.607. [2021 c.305 §1]

Sec. 4. (1) Section 1 of this 2021 Act and the amendments to ORS 646.607 by section 2 of this 2021 Act apply to acts to collect, receive, process, examine, analyze, collate, disclose, store or retain personal health data, as defined in section 1 of this 2021 Act, that occur on or after the effective date of this 2021 Act [June 15, 2021].

(2) A covered organization that collected, used or disclosed personal health data before the effective date of this 2021 Act may not store, retain or make use of personal health data later than, and shall destroy or render the personal health data inaccessible not later than, 65 days after the effective date of this 2021 Act. [2021 c.305 §4]

Sec. 5. Section 1 of this 2021 Act is repealed 270 days after the end of the emergency period, as defined in section 1 of this 2021 Act. [2021 c.305 §5]

DEBT COLLECTION

(Debt Buyers)

646A.640 Definitions. As used in ORS 646A.640 to 646A.673:

(1) “Applicant” means a person that applies for a license to engage in business as a debt buyer in this state.

(2) “Controller” means:

(a) A director, officer or general partner of a business entity;

(b) A managing member of a limited liability company;

(c) A person that has a direct or indirect right to vote 10 percent or more of the securities of a business entity that have voting rights or the power to sell or cause the sale of 10 percent or more of any class of a business entity’s securities;

(d) A person that has contributed 10 percent or more to a partnership’s capital or has the right to receive a distribution of 10 percent or more of a partnership’s capital or assets upon dissolution; or

(e) A person that, under the terms of a contract or because the person has an ownership interest in another person, has the power to manage or set policies for the other person, or otherwise direct the other person’s operations or affairs.

(3) “Debt buyer” has the meaning given that term in ORS 646.639.

(4) “Debt buying” means conducting business as a debt buyer or conducting business activities that are subject to regulation under ORS 646.639 (4), 646A.640 to 646A.673 and 646A.670.

(5) “Debtor” has the meaning given that term in ORS 646.639.

(6) “Legal action” has the meaning given that term in ORS 646.639.

(7) “Licensee” means a person that has applied for and obtained a license from the Department of Consumer and Business Services to engage in business as a debt buyer in this state.

(8) “Nationwide Multistate Licensing System” has the meaning given that term in ORS 697.500. [2017 c.625 §3]

646A.643 License requirement to engage in debt buying; exemptions. (1) Except as provided in subsection (2) of this section, a person may not engage in debt buying in this state unless the person obtains or renews a license under ORS 646A.646.

(2)(a) A person need not obtain or renew a license under subsection (1) of this section if the person is:

(A) A financial institution, as defined in ORS 706.008;

(B) A mortgage banker or a mortgage broker, both terms as defined in ORS 86A.100;

(C) A person that has a license the Director of the Department of Consumer and Business Services issued under ORS 725.140;

(D) A company that the director has authorized to transact trust business in this state under ORS 709.005;

(E) A debt management service provider, as defined in ORS 697.602;

(F) An attorney who is authorized to practice law in this state, if the attorney engages in debt buying only incidentally in the practice of law; or

(G) A person that the director exempts from the requirement by rule or order after determining that the public interest does not require the person to obtain a license.

(b) This subsection does not exempt a person from the requirement set forth in subsection (1) of this section if the person engages in business or conducts an activity outside the scope of the person’s license, registration or authorization to transact business in this state. [2017 c.625 §4]

646A.646 License application; requirements; application through Nationwide Multistate Licensing System; fee; insurance; license renewal; director’s investigation; license term; suspension or revocation; rules. (1)(a) A person that is subject to the requirement to obtain or renew a license under ORS 646A.643 (1) shall submit an application to the Director of the Department of Consumer and Business Services in the manner the director specifies by rule. The director by rule shall specify the format and contents of the application form. At a minimum, the rules must require an applicant or licensee to:

(A) List the applicant’s or licensee’s name and address and all assumed business names or other names the applicant or licensee has used in the course of engaging in debt buying or otherwise purchasing debt.

(B) List the name and address of the applicant’s or licensee’s registered agent in this state or another person that serves as the applicant’s or licensee’s agent for accepting service of process in this state.

(C) List the names and addresses of the applicant’s or licensee’s directors, members, officers, managers, partners and controllers.

(D) Provide a history of all enforcement actions or administrative, civil or criminal proceedings that involved a failure by the applicant or licensee or a director, member, officer, manager, partner or controller of the applicant or licensee to comply with federal or state law, regulations or rules.

(E) List all instances in which the applicant or licensee had a license, registration or other equivalent authorization to engage in debt buying denied, suspended, conditioned or revoked, unless the revocation was later rescinded, in this or another state.

(F) Disclose for the applicant or licensee and each of the applicant’s or licensee’s directors, members, officers, managers, partners and controllers all violations and arrests and all no contest pleas, guilty pleas and convictions, other than convictions that were later pardoned, in a federal, state, military or foreign court that involved a felony or a misdemeanor, if an element of the misdemeanor was a false statement or dishonesty, and that occurred:

(i) In the seven years before the date of an application under this section; or

(ii) At any time before the date of an application under this section if the conviction or plea involved a felony, an element of which was an act of fraud, dishonesty, a breach of trust or laundering a monetary instrument.

(b) The director by rule may require an applicant to apply for a license through the Nationwide Multistate Licensing System and may conform the practices, procedures and information the Department of Consumer and Business Services uses to issue or renew a license under this section with the practices, procedures and information the Nationwide Multistate Licensing System requires.

(c) The director by rule may require an applicant or licensee to submit fingerprints for any of the applicant’s directors, members, officers, managers, partners or controllers and to undergo a criminal records check as part of an application under this section.

(2) An applicant or licensee shall pay, when applying to obtain or renew a license, a nonrefundable fee in an amount that the director specifies by rule. The director shall specify an amount for the fee that is sufficient, when aggregated with all other fees collected under this section, to:

(a) Pay the expenses of administering and enforcing ORS 646.639, 646A.640 to 646A.673 and 646A.670; and

(b) Establish and maintain a reasonable emergency fund.

(3) In addition to the requirements set forth in subsections (1) and (2) of this section, an applicant or licensee shall file with the director proof that the applicant or licensee maintains an errors and omissions insurance policy from an insurer that the department has authorized to transact insurance in this state with limits that the director determines by rule.

(4)(a) The director shall issue or renew a license under this section if the director finds that:

(A) The application is complete and accurate;

(B) The applicant or licensee paid any fees required under this section;

(C) The applicant or licensee filed and maintains an errors and omissions insurance policy as provided in subsection (3) of this section;

(D) The applicant or licensee has not filed for bankruptcy within the seven years before the date of the application;

(E) The applicant or licensee, or a director, member, officer, manager, partner or controller of the applicant or licensee, has not been indicted for or convicted of a criminal offense and otherwise satisfies the director’s standard for passing a criminal background check;

(F) A licensee that seeks to renew a license has complied with any orders the director issued and paid any penalties the director assessed against the licensee under ORS 646.639 (4), 646A.640 to 646A.673 and 646A.670; and

(G) The applicant or licensee, or a director, member, officer, manager, partner or controller of the applicant or licensee, has not, within the seven years before the date of the application, been subject to or has cooperated or complied with:

(i) A final order to cease and desist from a violation of any law, regulation, rule or order that governs a debt buyer or debt buying in this or another state;

(ii) A suspension or revocation of a license, registration or other authorization to engage in debt buying in this or another state; or

(iii) Any other formal or informal enforcement action in this state or another state in which the governing body found that the applicant or licensee or the director, member, officer, manager, partner or controller violated an applicable law, regulation, rule or order.

(b) In addition to reviewing an applicant’s or licensee’s application under this section, the director may conduct an investigation to determine whether the applicant or licensee, and any of the applicant’s or licensee’s directors, members, officers, managers, partners or controllers have the financial responsibility, experience, character and general fitness necessary to command the confidence of the community and warrant a belief that the applicant or licensee will engage in debt buying honestly, fairly, efficiently and in compliance with ORS 646.639 (4), 646A.640 to 646A.673 and 646A.670.

(5)(a) A license the director issues or renews under this section:

(A) Must display a unique identifying number or other designation that specifically identifies the licensee in the director’s records; and

(B) Expires on December 31 of the calendar year in which the director issues the license. If a licensee intends to engage in debt buying on or after January 1 of the succeeding calendar year, the licensee shall renew the license before the expiration date.

(b) A licensee’s directors, members, officers, managers, partners, controllers, employees and agents have authority to engage in debt buying solely under the terms of a license the director issues under this section, and, for the purposes of ORS 646.639 (4), 646A.640 to 646A.673 and 646A.670, an action of a licensee’s director, member, officer, manager, partner, controller, employee or agent while engaging in debt buying is an action of the licensee.

(6) The director may suspend or revoke a license issued under this section if the director finds after a hearing in accordance with ORS chapter 183 that:

(a) The licensee failed or refused to comply with the director’s written request to respond to a complaint that the licensee violated a provision of ORS 646.639 (4) or of ORS 646A.640 to 646A.673 and 646A.670;

(b) The licensee engaged in an intentional course of conduct to violate state or federal law or a course of conduct that constitutes fraudulent, deceptive or dishonest dealings; or

646A.649 Licensee’s principal place of business and registered agent; assumed business name; display of license; rules. (1) A licensee shall designate and maintain a principal place of business at or from which the licensee engages in debt buying in this state and a registered agent in this state.

(2)(a) If a licensee does not maintain a principal place of business in this state, the licensee shall nevertheless designate a registered agent in this state. The registered agent must be available to receive on the licensee’s behalf any notice, demand or service of process permitted by law to be given, made or delivered to, or served upon, the licensee.

(b) If the licensee does not designate a registered agent in this state, or if the licensee’s registered agent cannot with reasonable diligence be located, the Director of the Department of Consumer and Business Services is the licensee’s registered agent.

(3) A licensee may not use or operate under an assumed business name unless the licensee first registers the assumed business name under ORS chapter 648 and lists the name on an application under ORS 646A.646 or in a notice to the director under ORS 646A.652.

(4)(a) A licensee shall clearly display the unique identifying number or designation described in ORS 646A.646 (5) in each business location the licensee maintains in accordance with subsection (1) of this section and in any solicitation, advertisement, promotional material, website or other communication the licensee uses in the licensee’s business.

(b) The director by rule may specify for the display required under paragraph (a) of this subsection:

(A) A text size or range of text sizes;

(B) A location;

(D) Other characteristics of the display. [2017 c.625 §6]

646A.652 Required notices. (1)(a) A licensee shall notify the Director of the Department of Consumer and Business Services in writing at least 30 days before the licensee relocates or closes the licensee’s principal place of business in this state.

(b) In a notice under paragraph (a) of this subsection the licensee shall list the new address to which the licensee relocates the licensee’s principal place of business.

(2)(a) A licensee shall notify the director in writing not later than 30 days after:

(A) Any appointment, resignation or other change occurs in the licensee’s directors, members, officers, managers, partners or controllers; or

(B) Any material change occurs in the information that the licensee submitted in an application under ORS 646A.646.

(b) The licensee shall provide in a notice under paragraph (a)(A) of this subsection the name, address and title of any new director, member, officer, manager, partner or controller the licensee appoints.

(3)(a) A licensee shall notify the director in writing not later than 10 days after:

(A) Filing for bankruptcy or reorganization;

(B) A director, member, officer, manager, partner, controller or registered agent of the licensee becomes subject to an indictment that is related in any manner to the licensee’s activities;

(i) Demands that the licensee cease and desist from any act;

(ii) Suspends or revokes a license or registration; or

(iii) Constitutes any other formal or informal regulatory action against the licensee in this or another state in which the governing body found that the licensee or a director, member, officer, manager, partner or controller of the licensee violated an applicable law, regulation, rule or order;

(D) The licensee registers or changes and uses or operates under an assumed business name; or

(E) Another change in the licensee’s operations or governance occurs in a manner or with an effect that the director determines by rule is significant enough to warrant the licensee notifying the director.

(b) A licensee shall specify in a notice under paragraph (a)(C) of this subsection the reasons for taking a regulatory action against the licensee that are set forth in any final order.

(4) A licensee shall notify the director immediately if the licensee changes registered agents or if the name or address for the licensee’s registered agent in this state changes. In the notice, the licensee shall update the name and address for the registered agent. [2017 c.625 §7]

646A.655 Compliance with director’s standards; rules. A licensee or a person that engages in debt buying shall comply with standards that the Director of the Department of Consumer and Business Services adopts by rule. The standards, at a minimum, must require the licensee or the person to:

(1) Establish appropriate training programs that instruct employees or agents of the licensee or the person in fair debt collection practices and compliance with ORS 646.639 and 646A.670 and applicable provisions of ORS 646A.640 to 646A.673.

(2) Establish and maintain adequate processes to receive and respond to complaints from debtors and other persons and resolve disputes.

(3) Store personal information, as defined in ORS 646A.602, securely and in compliance with the requirements of ORS 646A.600 to 646A.628 and promptly provide notice of all breaches of security as provided in ORS 646A.604.

(4) Ensure the accuracy, fairness and privacy of information the debt buyer or person possesses in accordance with the requirements of the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq., and Regulation V, 12 C.F.R. part 1022, both as in effect on January 1, 2018.

(5) Establish and maintain procedures for withdrawing or dismissing any legal action the debt buyer or person brings to collect a debt if ORS 12.080 or another applicable statute of limitations bars the legal action.

(6) Maintain adequate policies and procedures for producing and filing accurate and truthful affidavits.

(7) Maintain adequate policies and procedures for acquiring sufficient information about a debt or debtor to enable the debt buyer or person to establish a continuous chain of title for a debt from the original creditor to the current owner and to otherwise comply with ORS 646.639 (4), 646A.640 to 646A.673 and 646A.670. [2017 c.625 §8]

646A.658 Prohibited practices. A licensee or a person that engages in debt buying may not:

(1) Perform any act, undertake any practice or employ any device, scheme or artifice in the course of the licensee’s or the person’s business that the Director of the Department of Consumer and Business Services defines by rule as dishonest, unethical or illegal or that would operate as a deceit or fraud upon any person.

(2) Allow an errors and omissions insurance policy required under ORS 646A.646 (3) to lapse or otherwise fail to maintain the insurance policy.

(3) Fail to comply with standards the director adopts under ORS 646A.655.

(4) Knowingly make, in an application to obtain or renew a license under ORS 646A.646 or otherwise, an untrue statement of a material fact or omit to state a material fact that is necessary in order to make a statement true or not misleading in light of the circumstances under which the licensee or person makes the statement.

(5) Engage in debt buying if:

(a) A court has enjoined the licensee or person, temporarily or permanently, from engaging in debt buying or performing an act or undertaking a practice in the course of debt buying; or

(b) The licensee or person is subject to a United States Postal Service fraud order that was issued within the previous five years and that remains in effect.

(6) Violate any of the following laws or regulations as the laws or regulations apply to the licensee’s or person’s debt buying activities:

(a) The Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.;

(b) Federal regulations promulgated as 16 C.F.R. part 310 under 15 U.S.C. 6101 et seq.;

(c) Federal regulations promulgated as 16 C.F.R. part 681 under sections 114 and 315 of the Fair and Accurate Credit Transactions Act of 2003, P.L. 108-159; and

(d) ORS 646A.600 to 646A.628. [2017 c.625 §9]

646A.661 Director’s supervisory authority; examinations and investigations; referral to Attorney General; costs of examination or investigation; consultation and cooperation with trade association and members of public. (1) The Director of the Department of Consumer and Business Services has general supervisory authority and control over:

(a) Any person that engages in debt buying in this state; and

(b) Any person that had a license that the director withdrew, canceled, suspended, conditioned or revoked, if the person continues to engage in debt buying in this state.

(2)(a) The authority described in subsection (1) of this section includes the authority to examine a licensee or another person described in subsection (1) of this section at any time.

(b) The director may charge and collect from a licensee or a person the director examines under this section the costs the director incurs in conducting the examination.

(3) Books, accounts, papers, records, files, correspondence, contracts and agreements, memoranda, disclosures, documents and other information, material or evidence the director obtains in an examination under this section that concerns a debtor’s personal debt history or identifying information is confidential and subject to the provisions of ORS 705.137.

(4) The director may investigate, in this state or another state, or initiate an administrative proceeding concerning the business activities of a licensee or person that engages in debt buying to determine whether the licensee or person has violated, is violating or is about to violate ORS 646.639 (4) or ORS 646A.640 to 646A.673 and 646A.670 or a rule the director adopted or an order the director issued under ORS 646.639 (4) or ORS 646A.640 to 646A.673 and 646A.670. In the course of the investigation, the director may:

(a) Require the licensee or person to submit a statement concerning the subject of the investigation to the director in writing, under oath or otherwise;

(b) Compel witnesses to attend an investigation or proceeding, take evidence and require the licensee or person to produce books, accounts, papers, records, files, correspondence, contracts and agreements, memoranda, documents and other information, material or evidence the director deems relevant or material to the investigation or proceeding; and

(c) Interview and preserve testimony from a licensee’s or person’s directors, members, officers, managers, partners, controllers, employees, agents and customers, and any independent contractors associated with the licensee or person, concerning the licensee’s or person’s business practices and operations.

(5)(a) If the director has reasonable cause to believe, or determines after an investigation under subsection (4) of this section or after receiving a complaint from a debtor or another person, that a licensee or person that engages in debt buying may have violated ORS 646.639, the director shall notify the Attorney General and may refer all of the information the director gathered to the Department of Justice.

(b) If the Attorney General or the Department of Justice do not respond within 45 days after the date of a notice under paragraph (a) of this subsection or decline to undertake an enforcement action, the director may enforce the provisions of ORS 646.639.

(d) This subsection does not preclude:

(A) The Attorney General from representing the director in any action to enforce ORS 646.639; or

(B) The Attorney General and the director from sharing information, coordinating efforts or otherwise cooperating or collaborating in actions to enforce ORS 646.639.

(6) The director may charge and collect from a licensee or a person the director investigates under this section reasonable costs the director incurs in conducting the investigation, initiating or conducting a proceeding or otherwise enforcing the provisions of ORS 646.639 or ORS 646A.640 to 646A.673 and 646A.670.

(7)(a) The director may consult and cooperate with a national nonprofit trade association that certifies debt buyers according to an industry-recognized standard for properly managing purchased debt. The director may consult and cooperate with the trade association in areas of mutual interest including, but not limited to, determining industry standards and recognizing violations with which the trade association is familiar.

(b) In addition to consulting and cooperating with a trade association as provided in paragraph (a) of this subsection, the director may consult and cooperate with members of the public. [2017 c.625 §10]

646A.664 Enforcement actions; penalties. (1) If after conducting an investigation, initiating or conducting a proceeding or taking an enforcement action under ORS 646A.661 the Director of the Department of Consumer and Business Services determines that a licensee or a person that engages in debt buying in this state has violated ORS 646.639 or ORS 646A.640 to 646A.673 and 646A.670, a rule the director adopted or an order the director issued under ORS 646.639 or ORS 646A.640 to 646A.673 and 646A.670 or another applicable law, the director may:

(a) Order the licensee or the person to cease and desist from any act that constitutes the violation.

(b) Suspend, condition or revoke a licensee’s license or deny an application to obtain or renew a license under ORS 646A.646.

(c) Impose a civil penalty of not more than $5,000 for each violation after considering the severity of the violation, the intent of the licensee or person and any efforts the licensee or person made to remedy or mitigate the effects of the violation.

(d) Order the licensee or the person to disgorge and return all payments the licensee or person obtained from a debtor or another person in the course of or as a result of the violation.

(2) The director shall undertake an action described in this section in accordance with ORS chapter 183 and shall impose any civil penalty in accordance with ORS 183.745.

(3) Each instance in which the director determines a violation has occurred is a separate violation, and each day in which a person engages in a continuous violation is a separate violation. The director may not impose a penalty that exceeds $20,000 for a continuous violation.

(4) If the Department of Justice and the Department of Consumer and Business Services cooperate in an enforcement action under ORS 646A.661 that results in a civil penalty, the Attorney General and the director shall agree as to which of the two departments will impose the civil penalty.

(5) The director shall deposit any amount the director receives under this section to the Consumer and Business Services Fund as provided in ORS 705.145. [2017 c.625 §11]

646A.667 Preemption. (1) Except as provided in subsection (2) of this section, the provisions of ORS 646A.640 to 646A.673 and 646A.670 preempt all charter and statutory authority of local governments in this state to require a debt buyer or a person that engages in debt buying to obtain a license, registration or other authority to engage in debt buying or to charge a fee for a license, registration or other authority to engage in debt buying.

(2) Subsection (1) of this section does not affect the authority of a local government in this state to:

(a) Charge and collect from all businesses that operate within the local government’s jurisdiction a general and nondiscriminatory fee for a license, registration or other authority to conduct business; or

(b) Levy a tax on the revenue, property or operations of the business within the local government’s jurisdiction. [2017 c.625 §12]

646A.670 Legal action to collect debt; requirements for pleadings; judgments; attorney fees. (1) A debt buyer that brings legal action to collect or brings legal action to attempt to collect purchased debt, or a debt collector that brings legal action on the debt buyer’s behalf, shall include in an initial pleading that begins the legal action:

(a) The original creditor’s name, written as the original creditor used the name in dealings with the debtor;

(b) The name, address and telephone number of the person that owns the debt and a statement as to whether the person is a debt buyer;

(c) The last four digits of the original creditor’s account number for the debt, if the original creditor’s account number for the debt had four or more digits;

(d) A detailed and itemized statement that shows:

(A) The amount the debtor last paid on the debt, if the debtor made a payment, and the date of the payment;

(B) The amount and date of the debtor’s last payment on the debt before the debtor defaulted or before the debt became charged-off debt, if the debtor made a payment;

(D) The amount and rate of interest, any fees and any charges that the original creditor imposed, if the debt buyer or debt collector knows the amount, rate, fee or charge;

(E) The amount and rate of interest, any fees and any charges that the debt buyer or any previous owner of the debt imposed, if the debt buyer or debt collector knows the amount, rate, fee or charge;

(F) The attorney fees the debt buyer or debt collector seeks, if the debt buyer or debt collector expects to recover attorney fees; and

(G) Any other fee, cost or charge the debt buyer seeks to recover; and

(e) The date on which the debt buyer purchased the debt.

(2)(a) A court may not enter a judgment for a debt buyer or debt collector that has not complied with the requirements set forth in this section.

(b) If a court grants a judgment for a debt buyer or debt collector that does not comply with the requirements set forth in this section, the debtor in a motion under ORCP 71 may petition the court for relief from the judgment or the court may grant relief on the court’s own motion.

(3) A debt buyer or debt collector may obtain attorney fees in a legal action to collect or attempt to collect a debt only if:

(a) The debt buyer or debt collector prevails in the legal action; and

(b) The contract or writing described in ORS 646.639 (4)(b) provides that the creditor may obtain attorney fees from the debtor in a legal action to collect or attempt to collect the debt or another provision of law allows an award of attorney fees to the debt buyer or debt collector.

(4) A debt buyer or a debt collector that acts on the debt buyer’s behalf shall provide to a debtor all of the documents described in ORS 646.639 (4)(b) within 30 days after receiving a request for information about the debt from the debtor. [2017 c.625 §1]

646A.673 Rules. The Director of the Department of Consumer and Business Services may adopt rules to implement the provisions of ORS 646.639 (4), 646A.640 to 646A.673 and 646A.670. [2017 c.625 §13]

(Medical Debt)

646A.677 Requirement to screen for financial assistance before transferring medical debt for collection; permitted interest rate; unlawful collection practices. (1) As used in this section:

(a) “Debt collector” has the meaning given that term in ORS 646.639.

(b) “Financial assistance” means the written financial assistance policy described in ORS 442.610.

(d) “Hospital-affiliated clinic” has the meaning give that term in ORS 442.612.

(e) “Medical debt” means an amount owed by a patient to a hospital or a nonprofit hospital-affiliated clinic for medically necessary services or supplies.

(f) “Medically necessary” has the meaning given that term in ORS 442.612.

(g) “Nonprofit” has the meaning given that term in ORS 442.612.

(2) A hospital and a nonprofit hospital-affiliated clinic shall post the hospital’s financial assistance policy in the manner described in ORS 442.610 (3)(c).

(3) Upon the request of a patient or an individual who is authorized to act on behalf of a patient, a hospital or hospital-affiliated clinic shall conduct a screening to determine if the patient qualifies for:

(a) Financial assistance under the hospital’s financial assistance policy; or

(b) The state medical assistance program.

(4) Before transferring an unpaid charge for services to a debt collector or referring an unpaid charge for collection, a hospital or hospital-affiliated clinic shall:

(a) Conduct a screening to determine if the patient qualifies for financial assistance as described in ORS 442.614 (1)(a)(A), if applicable; and

(b) Provide a copy of its financial assistance policy to the patient along with an application for financial assistance.

(5) A hospital or nonprofit hospital-affiliated clinic may conduct the screening described in subsections (3) and (4) of this section using commercially available services, software or online tools.

(6) As a condition for providing financial assistance, a hospital may require a patient to:

(a) Respond to requests from the patient’s primary insurer as necessary for the insurer to adjudicate a claim for reimbursement of the cost of services; and

(b) Provide information concerning any potential third party liability for the cost of services including but not limited to:

(A) Information about the coordination of benefits between insurers that cover the patient’s care;

(B) Accident reports; and

(7) If a patient qualifies for financial assistance under ORS 442.614 (1)(a)(A), a hospital, nonprofit hospital-affiliated clinic or other debt collector may not charge interest on the patient’s medical debt.

(8)(a) Except as provided in paragraph (b) of this subsection, the interest that a hospital, nonprofit hospital-affiliated clinic or other debt collector may charge on a medical debt owed by a patient who does not qualify for financial assistance under ORS 442.614 (1)(a)(A) may not exceed the weekly average one-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the week preceding the date when the patient was first billed, except that the interest may not be less than two percent per annum or more than five percent per annum.

(b) Upon entry of a judgment against a patient described in paragraph (a) of this subsection, a hospital, nonprofit hospital-affiliated clinic or other debt collector may increase the interest charged on a medical debt up to the amount specified in ORS 82.010.

(9) A hospital, hospital-affiliated clinic or other debt collector may not attempt to collect a medical debt from a patient’s child or other family member who is not financially responsible for the debt under ORS chapter 108.

(10) It is an unlawful collection practice under ORS 646.639 for a hospital, hospital-affiliated clinic or other debt collector to collect or attempt to collect a medical debt in a manner that the hospital, hospital-affiliated clinic or other debt collector knows, or after exercising reasonable diligence would know, is in violation of this section. [2019 c.497 §4; 2021 c.96 §2]

DRUG PRICING AND SALES

646A.680 Legislative intent. The legislative intent of ORS 646A.683 is to improve public health and safety by taking steps to address the spiraling health care costs for residents of this state. [2019 c.436 §1]

646A.683 Requirement to report increase in drug price; exemptions. (1) As used in this section:

(a) “Drug” has the meaning given that term in ORS 689.005.

(b)(A) “Manufacture” means:

(i) The production, preparation, propagation, compounding, conversion or processing of a drug, either directly or indirectly by extraction from substances of natural origin or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis; and

(ii) The packaging or repackaging of a drug or labeling or relabeling of a drug container.

(B) “Manufacture” does not include the preparation or compounding of a drug by an individual for the individual’s own use or the preparation, compounding, packaging or labeling of a drug:

(i) By a health care practitioner incidental to administering or dispensing a drug in the course of professional practice;

(ii) By a health care practitioner or under the practitioner’s authorization and supervision for the purpose of or incidental to research, teaching or chemical analysis activities and not for sale;

(iii) By a health care service contractor for dispensing to a subscriber or delivery to a health care facility or outpatient clinic owned or operated by the health care service contractor or an affiliate of the health care service contractor;

(iv) By a centralized repackaging operation for distribution to subscribers of health care service contractors or to pharmacies, health care facilities or outpatient clinics whether or not operated by or affiliated with a health care service contractor; or

(v) By a health care facility for dispensing to a patient of the health care facility.

(d) “Prescription drug” means a drug that must:

(A) Under federal law, be labeled “Caution: Federal law prohibits dispensing without prescription” prior to being dispensed or delivered; or

(B) Under any applicable federal or state law or regulation, be dispensed only by prescription or restricted to use only by health care practitioners.

(e) “Price” means the wholesale acquisition cost as defined in 42 U.S.C. 1395w-3a(c)(6)(B).

(2) At least 60 days before a prescription drug manufacturer increases the price of a prescription drug, as described in subsection (3) of this section, the prescription drug manufacturer shall report to the Department of Consumer and Business Services, in the form and manner prescribed by the department, all the following information about the prescription drug:

(a) The date that the increase will become effective;

(b) The current price of the prescription drug;

(d) A statement of whether the price increase is necessitated by a change to or improvement in the prescription drug and, if so, a description of the change or improvement; and

(e) The year the drug became available for sale in the United States.

(3) Subsection (2) of this section applies to:

(a) An increase in the price of a brand-name prescription drug for which there will be, on the date that the increase goes into effect, a cumulative increase of 10 percent or more or an increase of $10,000 or more in the price of the brand-name prescription drug within a 12-month period beginning on or after July 1, 2019.

(b) An increase in the price of a generic prescription drug for which there will be, on the date that the increase goes into effect, a cumulative increase of 25 percent or more and an increase of $300 or more in the price of the generic prescription drug within a 12-month period beginning on or after July 1, 2019.

(4) Subsection (2) of this section does not apply to a prescription drug that is a retail drug, manufactured by four or more companies, that is:

(a) Marketed and distributed pursuant to an abbreviated new drug application, approved under 21 U.S.C. 355(j);

(b) An authorized generic drug as defined by 41 C.F.R. 447.502; or

(c) A drug that entered the market before the year 1962 and was not originally marketed under a new drug application. [2019 c.436 §2]

646A.686 Short title. ORS 646A.689 and 646A.692 shall be known and may be cited as the Prescription Drug Price Transparency Act. [2018 c.7 §1]

646A.689 Requirement to report certain information concerning drug manufacturing and pricing; contents of report; penalty; rules. (1) As used in this section and ORS 646A.693 to 646A.695:

(a) “Drug” has the meaning given that term in ORS 689.005.

(b) “Health care facility” has the meaning given that term in ORS 442.015.

(d)(A) “Manufacture” means:

(ii) The packaging or repackaging of a drug or labeling or relabeling of a drug container.

(B) “Manufacture” does not include the preparation or compounding of a drug by an individual for the individual’s own use or the preparation, compounding, packaging or labeling of a drug:

(i) By a health care practitioner incidental to administering or dispensing a drug in the course of professional practice;

(ii) By a health care practitioner or at the practitioner’s authorization and supervision for the purpose of or incidental to research, teaching or chemical analysis activities and not for sale;

(iv) By a centralized repackaging operation for distribution to subscribers of health care service contractors or to pharmacies, health care facilities or outpatient clinics operated by or affiliated with a health care service contractor; or

(v) By a health care facility for dispensing to a patient or other person.

(e) “Manufacturer” means a person that manufactures a prescription drug that is sold in this state.

(f) “New prescription drug” has the meaning prescribed by the Department of Consumer and Business Services by rule.

(g) “Patient assistance program” means a program that a manufacturer offers to the general public in which a consumer may reduce the consumer’s out-of-pocket costs for prescription drugs by using coupons or discount cards, receiving copayment assistance or by other means.

(h) “Prescription drug” means a drug that must:

(A) Under federal law, be labeled “Caution: Federal law prohibits dispensing without prescription” prior to being dispensed or delivered; or

(B) Under any applicable federal or state law or regulation, be dispensed only by prescription or restricted to use only by health care practitioners.

(i) “Price” means the wholesale acquisition cost as defined in 42 U.S.C. 1395w-3a(c)(6)(B).

(2) No later than March 15 of each year, a manufacturer shall report the information described in subsection (3) of this section to the department regarding each prescription drug for which:

(a) The price was $100 or more for a one-month supply or for a course of treatment lasting less than one month; and

(b) There was a net increase of 10 percent or more in the price of the prescription drug described in paragraph (a) of this subsection over the course of the previous calendar year.

(3) For each prescription drug described in subsection (2) of this section, a manufacturer shall report to the department, in the form and manner prescribed by the department:

(a) The name and price of the prescription drug and the net increase, expressed as a percentage, in the price of the drug over the course of the previous calendar year;

(b) The length of time the prescription drug has been on the market;

(d) The name of any generic version of the prescription drug available on the market;

(e) The research and development costs associated with the prescription drug that were paid using public funds;

(f) The direct costs incurred by the manufacturer:

(A) To manufacture the prescription drug;

(B) To market the prescription drug;

(D) For ongoing safety and effectiveness research associated with the prescription drug;

(g) The total sales revenue for the prescription drug during the previous calendar year;

(h) The manufacturer’s profit attributable to the prescription drug during the previous calendar year;

(i) The introductory price of the prescription drug when it was approved for marketing by the United States Food and Drug Administration and the net yearly increase, by calendar year, in the price of the prescription drug during the previous five years;

(j) The 10 highest prices paid for the prescription drug during the previous calendar year in any country other than the United States;

(k) Any other information that the manufacturer deems relevant to the price increase described in subsection (2)(b) of this section; and

(L) The documentation necessary to support the information reported under this subsection.

(4) The department may use any prescription drug price information the department deems appropriate to verify that manufacturers have properly reported price increases as required by subsections (2) and (3) of this section.

(5) A manufacturer shall accompany the report provided under subsection (2) of this section with the following information about each patient assistance program offered by the manufacturer to consumers residing in this state for the prescription drugs described in subsection (2) of this section:

(a) The number of consumers who participated in the program;

(b) The total value of the coupons, discounts, copayment assistance or other reduction in costs provided to consumers in this state who participated in the program;

(d) If the program expires after a specified period of time, the period of time that the program is available to each consumer; and

(e) The eligibility criteria for the program and how eligibility is verified for accuracy.

(6) No later than 30 days after a manufacturer introduces a new prescription drug for sale in the United States at a price that exceeds the threshold established by the Centers for Medicare and Medicaid Services for specialty drugs in the Medicare Part D program, the manufacturer shall notify the department, in the form and manner prescribed by the department, of all the following information:

(a) A description of the marketing used in the introduction of the new prescription drug;

(b) The methodology used to establish the price of the new prescription drug;

(c) Whether the United States Food and Drug Administration granted the new prescription drug a breakthrough therapy designation or a priority review;

(d) If the new prescription drug was not developed by the manufacturer, the date of and the price paid for acquisition of the new prescription drug by the manufacturer;

(e) The manufacturer’s estimate of the average number of patients who will be prescribed the new prescription drug each month; and

(f) The research and development costs associated with the new prescription drug that were paid using public funds.

(7)(a) After receiving the report or information described in subsections (2), (3), (5) or (6) of this section, the department may make a written request to the manufacturer for supporting documentation or additional information concerning the report. The department shall prescribe by rule the periods:

(A) Following the receipt of the report or information during which the department may request additional information; and

(B) Following a request by the department for additional information during which a manufacturer may respond to the request.

(b) The department may extend the period prescribed under paragraph (a)(B) of this subsection, as necessary, on a case-by-case basis.

(8) A manufacturer may be subject to a civil penalty, as provided in ORS 646A.692, for:

(a) Failing to submit timely reports or notices as required by this section;

(b) Failing to provide information required under this section;

(c) Failing to respond in a timely manner to a written request by the department for additional information under subsection (7) of this section; or

(d) Providing inaccurate or incomplete information under this section.

(9) Except as provided in subsection (10) of this section, the department shall post to its website all of the following information:

(a) A list of the prescription drugs reported under subsection (2) of this section and the manufacturers of those prescription drugs;

(b) Information reported to the department under subsections (3) and (5) to (7) of this section; and

(10)(a) The department may not post to its website any information described in subsection (9) of this section if:

(A) The information is conditionally exempt from disclosure under ORS 192.345 as a trade secret; and

(B) The public interest does not require disclosure of the information.

(b) If the department withholds any information from public disclosure pursuant to this subsection, the department shall post to its website a report describing the nature of the information and the department’s basis for withholding the information from disclosure.

(c) A person may petition the Attorney General, as provided in ORS 192.411, to review a decision by the department to withhold information pursuant to paragraph (a) of this subsection.

(11) In accordance with ORS 646A.694, the department shall provide to the Prescription Drug Affordability Board established in ORS 646A.693:

(a) Each calendar quarter, a list of prescription drugs included in reports submitted under subsections (2) and (6) of this section; and

(b) Access to pricing information submitted to the department under subsections (3), (6) and (7) of this section.

(12) The department shall make available to consumers, online and by telephone, a process for consumers to notify the department about an increase in the price of a prescription drug.

(13) The department may adopt rules as necessary for carrying out the provisions of this section, including but not limited to rules establishing fees to be paid by manufacturers to be used solely to pay the costs of the department in carrying out the provisions of this section.

(14) No later than December 15 of each year, the department shall compile and report the information collected by the department under this section to the interim committees of the Legislative Assembly related to health. The report shall include recommendations for legislative changes, if any, to contain the cost of prescription drugs and reduce the impact of price increases on consumers, the Department of Corrections, the Public Employees’ Benefit Board, the Oregon Health Authority, the Department of Human Services, the Oregon Educators Benefit Board and health insurance premiums in the commercial market. [2018 c.7 §2; 2018 c.7 §§6,7; 2021 c.598 §8]

Note: Section 7, chapter 598, Oregon Laws 2021, provides:

Sec. 7. (1) The Prescription Drug Affordability Board shall study the entire prescription drug distribution and payment system in this state and polices adopted by other states and countries that are designed to lower the list price of prescription drugs including but not limited to the following options:

(a) Establishing upper payment limits for all financial transactions in this state involving a drug and specifying the methodology used to determine the upper payment limit that does not undermine the viability of any part of the prescription drug supply chain;

(b) Using a reverse auction marketplace for the purchase of prescription drugs by state and local governments; and

(2) No later than December 31, 2022, the board shall complete the study described in subsection (1) of this section and report to the interim committees of the Legislative Assembly related to health in the manner provided in ORS 192.245:

(a) The board’s findings including findings for each option described in subsection (1) of this section; and

(b) Recommendations for policies to lower the list prices of prescription drugs sold in this state and for legislative changes necessary to implement the policies. [2021 c.598 §7]

646A.692 Civil penalty. (1) A manufacturer that fails to report or provide information as required by ORS 646A.689 may be subject to a civil penalty as provided in this section.

(2) The Department of Consumer and Business Services shall adopt a schedule of penalties, not to exceed $10,000 per day of violation, based on the severity of each violation.

(3) The department shall impose civil penalties under this section as provided in ORS 183.745.

(4) The department may remit or mitigate civil penalties under this section upon terms and conditions the department considers proper and consistent with the public health and safety.

(5) Civil penalties collected under this section shall be paid over to the State Treasurer and deposited in the General Fund to be made available for general governmental expenses. [2018 c.7 §3]

PRESCRIPTION DRUG AFFORDABILITY BOARD

646A.693 Prescription Drug Affordability Board; membership and qualifications of members; terms of office; duties; conflicts of interest; rules. (1) The Prescription Drug Affordability Board is established in the Department of Consumer and Business Services to protect residents of this state, state and local governments, commercial health plans, health care providers, pharmacies licensed in this state and other stakeholders within the health care system in this state from the high costs of prescription drugs.

(2) The board consists of five members and three alternates appointed by the Governor.

(3) The term of office of each member of the board is four years, but a member serves at the pleasure of the Governor. Before the expiration of the term of a member, the Governor shall appoint a successor whose term begins on January 1 next following. A member is eligible for reappointment. If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective for the unexpired term.

(4) The appointment of each member of the board is subject to confirmation by the Senate in the manner prescribed in ORS 171.562 and 171.565.

(5) A member of the board is entitled to compensation and expenses as provided in ORS 292.495.

(6) The members of the board must be residents of this state with expertise in health care economics and clinical medicine.

(7) A member of the board may not be an employee of, a board member of or a consultant to a manufacturer or a trade association of manufacturers.

(8) The board shall select one of its members as chairperson and another as vice chairperson, for terms and with duties and powers necessary for the performance of the functions of the offices as the board determines.

(9) A majority of the members of the board constitutes a quorum for the transaction of business.

(10) The department shall appoint an executive director for the board, may employ consultants, investigators or other staff and shall provide staff support to the board to carry out its duties.

(11) The board shall meet at least once every six weeks at a time and place determined by the chairperson. The chairperson may cancel or postpone a regular meeting if there is no prescription drug to review. The board may also meet at other times and places specified by the call of the chairperson or of a majority of the members of the board.

(12)(a) The following actions by the board shall be open to the public in accordance with ORS 192.610 to 192.690:

(A) Any deliberation on whether to conduct an affordability review of a prescription drug under ORS 646A.695; and

(B) Any decision or deliberation toward a decision on any matter before the board except as provided in paragraph (b) of this subsection.

(b) The board may meet in executive session to discuss trade secret information.

(13) The board shall:

(a) Provide public notice of each board meeting at least two weeks in advance of the meeting;

(b) Make materials for each board meeting available to the public at least one week in advance of the meeting;

(d) Provide the public with the opportunity to submit written comments on any pending decision of the board.

(14) The board may allow expert testimony at board meetings, including when the board meets in executive session.

(15)(a) A member of the board shall recuse the member from decisions related to a prescription drug if the member, or an immediate family member of the member, has received or could receive any of the following:

(A) A direct financial benefit of any amount deriving from the result or finding of a study, review or determination by or for the board; or

(B) A financial benefit from any person that owns, manufactures, or provides prescription drugs, services or items to be reviewed by the board that in the aggregate exceeds $5,000 per year.

(b) For the purposes of paragraph (a) of this subsection, a financial benefit includes honoraria, fees, stock, the value of the member’s or immediate family member’s stock holdings and any direct financial benefit deriving from the result or finding of a study, review or determination by or for the board.

(A) By the board when hiring board staff;

(B) By the Governor when appointing members and alternate members to the board; and

(C) By the board, when a member of the board is recused in any final decision resulting from a review of a prescription drug.

(d) A conflict of interest shall be disclosed at the earlier of:

(A) Prior to the first board meeting after the conflict is identified; or

(B) Within five days after the conflict is identified.

(e) A conflict of interest disclosed under this section shall be posted on the website of the board unless the chairperson of the board recuses the member from any final decision resulting from a review of a prescription drug.

(f) A posting under paragraph (e) of this subsection shall include the type, nature and magnitude of the conflict of interest of the member involved.

(16) Members and alternate members of the board, staff and third parties that contract with the board may not accept any gift or donation of services or property that creates a potential conflict of interest or has the appearance of biasing the work of the board.

(17)(a) The board may enter into a contract with a qualified, independent third party for any service necessary to carry out the powers and duties of the board.

(b) Unless permission is granted by the board, a third party hired by the board may not release, publish or otherwise use any information to which the third party has access under its contract.

(18) In accordance with applicable provisions of ORS chapter 183, the board may adopt rules necessary for the administration of ORS 646A.693 to 646A.695. [2021 c.598 §1]

Note: Section 9, chapter 598, Oregon Laws 2021, provides:

Sec. 9. Notwithstanding the term of office specified by section 1 of this 2021 Act [646A.693], of the members first appointed to the Prescription Drug Affordability Board:

(1) One member and one alternate shall serve for a term ending December 31, 2024.

(2) Two members and one alternate shall serve for a term ending December 31, 2025.

(3) Two members, including the chairperson, and one alternate shall serve for a term ending December 31, 2026. [2021 c.598 §9]

646A.694 Annual affordability determination for identified drugs and insulin products; criteria for and limitations on determination; confidentiality; rules. (1) The Department of Consumer and Business Services shall provide to the Prescription Drug Affordability Board each calendar quarter a list of prescription drugs included in reports submitted to the department under ORS 646A.689 (2) and (6), a list of drugs included in reports submitted to the department under ORS 743.025 and a list of insulin drugs marketed in this state during the previous calendar year. Each calendar year, the board shall identify nine drugs and at least one insulin product from the lists provided under this subsection that the board determines may create affordability challenges for health care systems or high out-of-pocket costs for patients in this state based on criteria adopted by the board by rule, including but not limited to:

(a) Whether the prescription drug has led to health inequities in communities of color;

(b) The number of residents in this state prescribed the prescription drug;

(d) The estimated average monetary price concession, discount or rebate the manufacturer provides to health insurance plans in this state or is expected to provide to health insurance plans in this state, expressed as a percentage of the price for the prescription drug under review;

(e) The estimated total amount of the price concession, discount or rebate the manufacturer provides to each pharmacy benefit manager registered in this state for the prescription drug under review, expressed as a percentage of the prices;

(f) The estimated price for therapeutic alternatives to the drug that are sold in this state;

(g) The estimated average price concession, discount or rebate the manufacturer provides or is expected to provide to health insurance plans and pharmacy benefit managers in this state for therapeutic alternatives;

(h) The estimated costs to health insurance plans based on patient use of the drug consistent with the labeling approved by the United States Food and Drug Administration and recognized standard medical practice;

(i) The impact on patient access to the drug considering standard prescription drug benefit designs in health insurance plans offered in this state;

(j) The relative financial impacts to health, medical or social services costs as can be quantified and compared to the costs of existing therapeutic alternatives;

(k) The estimated average patient copayment or other cost-sharing for the prescription drug in this state;

(L) Any information a manufacturer chooses to provide; and

(m) Any other factors as determined by the board in rules adopted by the board.