Trade Practices and Antitrust Regulation
Definitions for ORS 646.551 to 646.557
(1)(a) “Business opportunity” means a commercial arrangement in which:
(A)A seller solicits a prospective purchaser to enter into a new business or to buy ancillary services within 60 days after entering into a new business;
(B)The prospective purchaser makes a payment or agrees to be obligated to make a payment required for the business or services; and
(C)The seller, expressly or by implication, and orally or in writing, represents that the seller or a designated person will:
(i)Provide an outlet, account or customers, by means of the Internet or otherwise, for the purchaser’s goods or services; or
(ii)Buy back goods or services that the purchaser makes, produces, fabricates, grows, breeds, modifies or provides, including but not limited to paying for services such as stuffing envelopes at the purchaser’s residence.
(b)“Business opportunity” does not include:
(A)A sale of all or substantially all of the assets of an ongoing business if the owner of the business intends to sell and sells the assets as one opportunity;
(B)A sale of sales demonstration equipment, materials or samples for a total price of $500 or less and not for profit; or
(C)A sale of a franchise, as defined 16 C.F.R. 436.1, unless the franchise is exempted from the definition because:
(i)The total of the required payments the franchisee pays or commits to pay to a franchisor or an affiliate is less than $500 at any time before or within six months after the purchaser begins business as a franchisee; or
(ii)No written document exists that describes any material term or aspect of the franchise arrangement.
(2)“Telephone solicitation” means telephonic contact made under any of the following circumstances:
(a)A person has telephonic contact with a prospective purchaser and solicits the prospective purchaser to purchase a business opportunity;
(b)A person initiates telephonic contact with a prospective purchaser and represents or implies any of the following:
(A)That a prospective purchaser who buys a unit of a good or service will receive additional units, whether or not of the same type as the purchaser bought, without further cost. As used in this subparagraph, “further cost” does not include actual postage or common carrier delivery charges, if any.
(B)That a prospective purchaser will receive a prize or gift if the prospective purchaser does either of the following:
(i)Purchases or rents goods or services; or
(ii)Pays any money including, but not limited to, a delivery or handling charge.
(C)That a prospective purchaser who buys goods or services because of some unusual event or imminent price increase will be able to buy the goods or services at prices that are below the prices that usually are charged, or the prices that will be charged in the future, for the goods or services.
(D)That the seller is a person other than the actual seller.
(E)That goods or services are manufactured or supplied by a person other than the actual manufacturer or supplier.
(F)That the goods that the person is selling are gold, silver or other precious metals, diamonds, rubies, sapphires or other precious stones or any interest in oil, gas or mineral fields, wells or exploration sites; or
(c)The person makes the telephonic contact in response to inquiries from prospective purchasers prompted by advertisements on behalf of the person, and the person conducts a solicitation as described in paragraph (b) of this subsection.
(3)(a) “Telephonic seller” means a person who, on the person’s own behalf, or on behalf of another person, causes or attempts a telephone solicitation.
(b)“Telephonic seller” does not include any of the following:
(A)A person that sells a security as defined in ORS 59.015 (Definitions for Oregon Securities Law), or securities that are exempt under ORS 59.025 (Securities exempt from registration).
(B)A person that is licensed pursuant to ORS chapter 696 if the solicited transaction is governed under ORS chapter 696.
(C)A person that is licensed pursuant to ORS 701.021 (License requirement) if the solicited transaction is governed under ORS chapter 701.
(D)A person that is licensed pursuant to ORS chapter 744 if the solicited transaction is governed under the Insurance Code.
(E)A person that solicits the sale of a franchise if the solicited transaction is governed under ORS 650.005 (Definitions for ORS 650.005 to 650.100) to 650.100 (Disposition of civil penalties).
(F)A person that primarily solicits a subscription to or advertising in a newspaper of general circulation.
(G)A person that primarily solicits a subscription to a magazine or periodical, or a sale of a contractual plan, including a book or record club:
(i)Under which the seller provides the means by which the consumer may instruct the seller not to ship the offered merchandise, and which is regulated by the Federal Trade Commission trade regulation concerning “Use of Negative Option Plans by Sellers in Commerce”; or
(ii)Using arrangements such as continuity plans, subscription arrangements, standing order arrangements, supplements and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive the merchandise on a periodic basis.
(H)A person that solicits business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling, unless the person solicits a business opportunity.
(I)A person that solicits without the intent to complete and who does not complete a sales presentation during the telephone solicitation and who only completes the sales presentation at a later face-to-face meeting between the solicitor and the prospective purchaser, unless at the later meeting the solicitor collects or attempts to collect payment to deliver items purchased.
(J)Any supervised financial institution or parent, subsidiary, or affiliate of a supervised financial institution. As used in this subparagraph, “supervised financial institution” means any financial institution or trust company, as those terms are defined in ORS 706.008 (Additional definitions for Bank Act), or any personal property broker, consumer finance lender, commercial finance lender or insurer that is subject to regulation by an official or agency of this state or the United States.
(K)A person that solicits the sale of funeral or burial services regulated by ORS chapter 692.
(L)A person that solicits the sale of services that a cable television system provides under authority of a franchise or permit issued by a governmental agency of this state or a subdivision of a governmental agency of this state.
(M)A person or affiliate of a person whose business is regulated by the Public Utility Commission, or a telecommunications utility with access lines of 15,000 or less or a cooperative telephone association.
(N)A person that solicits the sale of a farm product, as defined in ORS 79.0102 (UCC 9-102. Definitions and index of definitions), if the solicitation does not result in a sale that costs the purchaser more than $100.
(O)An issuer or a subsidiary of an issuer that has a class of securities that is subject to section 12 of the Securities Exchange Act of 1934 and that is either registered or exempt from registration under paragraph (A), (B), (C), (E), (F), (G) or (H) of subsection (g) of that section.
(P)A person that solicits exclusively the sale of telephone answering services that the person or the person’s employer provides.
(Q)A person registered under the Charitable Solicitations Act. [1989 c.622 §2; 1997 c.249 §196; 1997 c.631 §513; 1999 c.59 §188; 1999 c.402 §5; 2001 c.445 §177; 2007 c.661 §27; 2007 c.836 §47; 2015 c.199 §1]
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