2017 ORS 646.644¹
Free offer
  • required disclosures
  • limitations on financial obligation incurred by consumer
  • enforcement
  • exception

(1) As used in this section:

(a) “Affirmative consent” means a consumer’s agreement to incur a financial obligation as a result of accepting a free offer, or to provide the consumer’s billing information, given or made in the manner specifically identified for the consumer to indicate the consumer’s agreement.

(b) “Billing information” means any record or information compiled or maintained with respect to a consumer that identifies the consumer and provides a means by which the consumer’s financial obligation incurred by accepting a free offer may be paid or otherwise satisfied, including but not limited to information pertaining to a consumer’s credit card, payment card, charge card, debit card, checking, savings or other banking account, and electronic funds transfer information.

(c) “Clear and conspicuous information” means language that is readily understandable and presented in such size, color, contrast and location, or audibility and cadence, compared to other language as to be readily noticed and understood, and that is in close proximity to the request for consent to a free offer.

(d) “Consumer” means an individual who seeks to accept or accepts a free offer.

(e)(A) “Free offer” means an offer of goods or services without cost, or for a one-time payment to cover only incidental charges such as shipping and handling, to a consumer that, if accepted, causes the consumer to incur a financial obligation for:

(i) The goods or services received;

(ii) Additional goods or services other than those initially received; or

(iii) Enrollment in a membership, subscription or service contract as a result of accepting the offer.

(B) “Free offer” does not include a free good or service that is received by a consumer as a result of the consumer’s entering into an agreement for enrollment in a membership, subscription or service contract that is not otherwise a free offer or a consequence of the consumer’s agreement to accept a free offer.

(2) A person may not make a free offer to a consumer, or impose a financial obligation on the consumer as a result of the consumer’s acceptance of a free offer, unless the person provides the consumer with clear and conspicuous information regarding the terms of the free offer before the consumer agrees to accept the free offer, including at a minimum:

(a) Identification of all goods or services, or enrollments in a membership, subscription or service contract, that the consumer will receive or incur a financial obligation for as a result of accepting the free offer;

(b) The cost to the consumer of any financial obligation the consumer will incur if the consumer accepts the free offer, including any fees or charges;

(c) Any requirement, if applicable, that the consumer take affirmative action to reject the free offer and instructions about how the consumer is to indicate the consumer’s rejection of the free offer;

(d) A statement, if applicable, that by accepting the free offer, the consumer will become obligated for additional goods or services, or enrollment in a membership, subscription or service contract, unless the consumer takes affirmative action to cancel the free offer or otherwise reject receipt of the additional goods or services or the enrollment in a membership, subscription or service contract;

(e) Except as provided in paragraph (h) of this subsection, the consumer’s right to cancel the free offer using procedures specifically identified for that purpose that, at a minimum, enable the consumer to cancel by calling a toll-free telephone number or to cancel in a manner substantially similar to that by which the consumer accepted the free offer;

(f) The time period during which the consumer must cancel in order to avoid incurring a financial obligation as a result of accepting the free offer;

(g) If applicable, the consumer’s right to receive a credit on goods or services received as a result of accepting the free offer when the goods or services are returned or rejected, and the time period during which the goods or services must be returned or rejected for the purpose of receiving a credit; and

(h) With respect to a free offer that is for a publication, including but not limited to a magazine, newspaper or other periodical, a statement that the consumer will receive information regarding the consumer’s right to cancel the free offer and an explanation of the procedure to cancel the free offer at the time the consumer receives an invoice to pay for the publication, including but not limited to written notice of cancellation by mail to the person providing the free offer.

(3) A person may not cause a consumer to incur a financial obligation as a result of accepting a free offer unless:

(a) The person obtains the consumer’s billing information directly from the consumer; or

(b) The consumer gives affirmative consent at the time the consumer accepts a free offer for the person to provide billing information to a person other than the person making a free offer. For purposes of this subsection, a person obtains a consumer’s billing information directly from the consumer if it is obtained by the person or by the person’s agent or employee.

(4) A person may not impose a financial obligation on a consumer as a result of the consumer’s acceptance of a free offer unless the consumer’s affirmative consent to the terms of the free offer as set forth in subsection (2) of this section is obtained.

(5) A person that makes a free offer to a consumer may not fail or refuse to cancel the free offer if the consumer has used, or made reasonable efforts to attempt to use, one of the procedures required by subsection (2)(e) of this section.

(6) A person who violates a provision of this section engages in an unlawful practice subject to enforcement and penalty under ORS 336.184 (Oregon Student Information Protection Act) and 646.605 (Definitions for ORS 336.184 and 646.605 to 646.652) to 646.652 (District attorney’s reports to Attorney General).

(7) This section does not apply to free offers made in connection with services that are subject to the federal Communications Act of 1934 (47 U.S.C. 151 et seq.). [2011 c.502 §2]

Notes of Decisions

A complaint which alleges in one count that defendants advertised automobile for sale with intent not to sell it as advertised, in a sec­ond count that there was a failure to disclose advertised price coupled with sale at greater amount sufficiently pleads ac­tion under Act. Sanders v. Francis, 277 Or 593, 561 P2d 1003 (1977)

Plaintiff’s purchase of truck to carry on business of hauling freight in order to provide family invest­ment and employ­ment for family member did not fall within pro­vi­sions of Act. Searle v. Exley Express, Inc., 278 Or 535, 564 P2d 1054 (1977)

Amend­ment of defini­tion of “trade” and “commerce” to include “advertising, offering or distributing, whether by sale, rental or otherwise, any real estate, goods or services” does not indicate legislative intent to extend applica­tion of Unfair Trade Practices Act to loans and extensions of credit. Lamm v. Amfac Mortgage Corp., 44 Or App 203, 605 P2d 730 (1980)

There is no require­ment that consumer prove all ele­ments of common law fraud in order to recover damages under Unlawful Trade Practices Act. Raudebaugh v. Ac­tion Pest Control, 59 Or App 166, 650 P2d 1006 (1982)

Plaintiff’s allega­tions that defendant escrow company represented that plaintiff would receive security interests on notes from sale of their business did not constitute misrepresenta­tions ac­tionable under Unlawful Trade Practices Act. Samuels v. Key Title Co., 63 Or App 627, 665 P2d 362 (1983), Sup Ct review denied

Law Review Cita­tions

56 OLR 490 (1977); 13 WLJ 455 (1977)

Notes of Decisions

Where users of IUDs brought suit against manufacturer on variety of grounds, claiming damages for infertility, private en­force­­ment pro­vi­sion of Oregon Unlawful Trade Practices Act (UTPA) does not provide remedy for per­sonal injuries. Allen v. G.D. Searle and Co., 708 F Supp 1142 (D. Or. 1989)

For purposes of applying Oregon Unlawful Trade Practices Act, real estate, goods or services are obtained primarily for per­sonal, family or household purposes if (1) real estate, good or service is customarily purchased by substantial number of people for per­sonal, family or household use and (2) per­son actually purchases real estate, good or service for per­sonal, family or household use. Fowler v. Cooley, 239 Or App 338, 245 P3d 155 (2010)

Law Review Cita­tions

51 OLR 335, 346, 408 (1972); 53 OLR 473-475 (1974); 94 OLR 589 (2016)

Chapter 646

Notes of Decisions

Subject matter regulated by this chapter is not “preempted” by Federal Robinson-Patman Act so as to render this chapter invalid. W. J. Seufert v. Nat. Restaurant Supply Co., 266 Or 92, 511 P2d 363 (1973)

Whether an injunc­tion should issue when a court finds a viola­tion of the Act is a matter of discre­tion. State ex rel Johnson v. Interna­tional Harvester Co., 25 Or App 9, 548 P2d 176 (1976)

This chapter imposes no af­firm­a­tive duty to inform customers of rates in absence of request, but prohibits making in­for­ma­­tion about prices available to some customers and not others. Wildish Sand & Gravel v. Northwest Natural Gas Co., 103 Or App 215, 796 P2d 1237 (1990), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 646—Trade Practices and Antitrust Regulation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors646.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 646, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano646.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.