Current through Register Vol. 63, No. 3, March 1, 2024
(1)
Purpose: The purpose of OAR 137-020-0410 to 137-020-0440 is to declare as
unfair or deceptive in trade or commerce certain practices in
promotions.
(2) Authority: OAR
137-020-0410 to 137-020-0440 are adopted pursuant to ORS Chapter 183 on
authority granted to the Attorney General by
646.608(4) and
646.608(1)(u).
(3) Definitions: For purposes of OAR
137-020-0410 to 137-020-0440:
(a) The
definitions set forth in ORS
646.605 are
applicable.
(b) "Advertisement" or
"solicitation" means any oral, written or graphic notice given in a manner
designed to attract public attention and includes without limitation, public
broadcasts, and notices published in the electronic press as well as telephone
and mail solicitations used to encourage any type of action by the person
solicited relating to a promotion.
(c) "Clear and conspicuous" means the message
is conveyed in a manner that is reasonably apparent to the audience to whom it
is directed. In order for a message to be considered clear and conspicuous, it
shall, at a minimum:
(A) Not contradict or
substantially alter any terms it purports to clarify, explain or otherwise
relate to; and
(B) In the case of
printed advertising or solicitations:
(i) Be
in close proximity to the terms it purports to clarify, explain or otherwise
relate to; and
(ii) Be of
sufficient prominence in terms of placement, font or color contrast as compared
with the remainder of the advertisement or solicitation so as to be reasonably
apparent to the audience to whom it is directed.
(d) "Contest" means a procedure
where a prize is awarded or offered in which the outcome depends on the skill
of the contestant and includes puzzles, games, and competitions. "Contest"
includes any such procedure in which a person is required to purchase anything,
pay anything of value or make a donation. "Contest" includes also any such
procedure which is advertised in a way creating the reasonable impression that
a payment of anything of value, purchase of anything, or making a donation is a
condition of awarding a prize or receiving, using, competing for, or obtaining
information about a prize.
(e)
"Prize" means a gift, award, cash award, or other thing of value offered or
awarded to a person in a promotion.
(f) "Promotion" means any contest,
sweepstakes or scheme. "Promotion" does not include any contest, sweepstakes or
scheme in which the sole act required for entry, participation, or receipt of a
prize is that the participant mail or deposit a form or game piece with the
sponsor, place a call to a local or toll free number, or, mail a request or
place a call to a local or toll-free number to obtain a game piece or form
which the entrant can then return by mail or deposit at a local retail
establishment, provided:
(A) That the fact
that no purchase or payment of anything of value to the sponsor is required is
clearly and conspicuously disclosed in each advertisement or solicitation;
and
(B) No advertisements or
solicitations for the contest, sweepstakes, or scheme create the reasonable
impression that a payment of anything of value, purchase of anything, or making
a donation is a condition of awarding a prize or receiving, using, competing
for, or obtaining information about a prize.
(g) "Personal Financial Data" means personal
financial data about the person, including but not limited to income, credit
card ownership, bank account information, or similar financial
information.
(h) "Scheme" means any
advertisement or solicitation which requires a person to pay anything of value,
make a donation, or creates the reasonable impression that a payment of
anything of value, purchase of anything, or making a donation is a condition of
awarding a prize or receiving, using, competing for, or obtaining information
about a prize.
(i) "Sponsor" means
any person who, in connection with any promotion, awards or offers another
person a prize or who allows the person to receive, use, compete for, or obtain
information about a prize.
(j)
"Sweepstakes" means a procedure based on chance of awarding a prize.
"Sweepstakes" includes any such procedure in which a person is required to
purchase anything, pay anything of value or make a donation as a condition of
awarding a prize or receiving, using, competing for, or obtaining information
about a prize. "Sweepstakes" includes also any such procedure which is
advertised in a way creating the reasonable impression that a payment of
anything of value, purchase of anything, or making a donation, is a condition
of awarding a prize or receiving, using, competing for, or obtaining
information about a prize.
(k)
"Verifiable Retail Value" has the meaning given in OAR
137-020-0015(1)(c).
(4)
OAR 137-020-0410 to 137-020-0440 apply only to promotions. These rules do not
apply to:
(a) Any activity by the State of
Oregon or by a private person acting as a duly authorized contractee of the
State Lottery Commission;
(b) A
qualified nonprofit organization conducting a raffle pursuant to ORS Chapter
464; or
(c) Activity described in
ORS 646.612(2).
(5) The information required to be
disclosed pursuant to OAR 137-020-0420, OAR 137-020-0430 and OAR 137-020-0440
shall be deemed to be clearly and conspicuously disclosed if it is printed in
compliance with this subsection in a distinct portion of the solicitation
entitled "Consumer Disclosure," "Official Rules," or words of similar meaning.
To comply with this subsection, the main text of the advertisement or
solicitation shall contain clear and conspicuous reference to this portion, and
the reference to the portion shall appear in close proximity to each
description of the principal prize.
(6) Broadcast advertisements shall be exempt
from the requirements of OAR 137-020-0420 and 137-020-0430(2)(a), (b), and (c)
if:
(a) The information otherwise required by
OAR 137-020-0420 to 137-020-0440 is available in writing; and
(b) The broadcast advertisement clearly and
conspicuously refers the consumer to the location where the information is
available.
Stat. Auth.: ORS
180.520(1)(c),
ORS 646.608(1)(u)
& ORS 646.608(1)(u)
Stats. Implemented: ORS
180.520(1)(c),
ORS 646.608(1)(u)
& ORS 646.608(1)(u)
