Or. Admin. R. 137-020-0015
137-020-0015 Misleading
Use of "Free" Offers
(1)
Definitions:
As used in this rule:
(a)
The definitions of
terms set forth in ORS 646.605 are applicable;
(b)
"Free" means
without charge or cost, monetary or otherwise, to the recipient, and includes
terms of essentially identical import, such as "1[cent] sale," "2
for the price of 1" and "give away" and, in the case of real
estate, goods or services described in subsection (2)(a) of this rule, an offer
of any combination of real estate, goods or services at a single price. A free
offer in conjunction with the sale or lease of real estate, goods or services
is one that conveys to customers the message that real estate, goods or services
are offered at no cost in conjunction with the purchase of other real estate,
goods or services for no more than their regular price;
(c)
"Verifiable retail
value" means:
(A)
A price at which an
offer or can demonstrate that a substantial number of free items have been sold
at retail in Oregon by a person other than the offeror; or
(B)
If substantiation
described in this section is not available to an offeror, no more than one and
one-half times the amount an offeror paid for a free item.
EXAMPLE : If substantiation,
as described in this section, is not available, and the offeror pays $ 10 for
a free item, the verifiable retail value of that free item would be $ 15.
(2)
Unfair or Deceptive
Use of "FREE" Offers: A person engages in conduct which is unfair
or deceptive in trade or commerce:
(a)
When it makes a free
offer in conjunction with the purchase or lease of real estate, goods or services,
the price, size, quantity, or quality of which is normally determined by that
seller by bargaining with potential purchasers. For purposes of this section,
an offer of any combination of real estate, goods and services for a single
price is not a free offer if:
(A)
The "free"
item is offered by a manufacturer or another party, separate from the seller,
and there is no direct cost to the seller; or
(B)
The offer includes
no terms, other than the offer of the combination itself, indicative of a free
offer as defined in subsection (1)(b) of this rule and the offer includes one
of the following disclaimers, communicated in a clear and conspicuous manner,
as defined in OAR 137-020-0050:
(i)
"Cost of promotion
may increase price of ........." (The phrase shall be completed with a
description of the basic real estate, goods or services offered for sale.);
or
(ii)
"This is a combination
offer. Make your best deal on a package price."
(b)
When it makes a free
offer combined with the offer of real estate, goods or services, the price of
which is not normally determined by bargaining and in order to receive the "free"
real estate, goods or services the recipient must at any time purchase or lease
other real estate, goods or services at a price which is higher than that at
which the person offered for sale or sold such real estate, goods or services
in the ordinary course of business during the 30 days preceding the "free"
offer (unless such higher price is the regular price at which such real estate,
goods or services are thereafter sold in the regular course of business);
(c)
When it makes a free
offer and in order to qualify for the offer, the recipient will be given a presentation
intended to result in the promotion of a business or sale or lease of real estate,
goods or services unless the offer contains a clear and conspicuous disclosure:
(A)
Identifying the business
promoted or the goods or services offered for sale or lease;
(B)
That the recipient
must listen to a sales or promotional presentation in order to receive the free
offer or that the recipient is entitled to receive the free offer after refusing
to listen to the presentation, whichever is the case. If the free item described
is not immediately available for delivery to the recipient after the recipient
has listened to a sales or promotional presentation, the recipient shall be
given the verifiable retail value of the free item in cash or by a valid check;
(C)
Including a description
of each potentially free item and its verifiable retail value in the trade area
in which the offer is made;
(D)
If the free item is
one or more of a larger group, if received on a random basis, (in addition to
compliance with subsection (e) of this section) a description of the actual
odds of receiving each item based on the initial odds and revised to reflect
actual current odds at the beginning of each month of use of the free promotion;
if not on a random basis, a description of the method of selection used. The
description of the initial odds and the current odds shall include a statement
of the total number of each free item to be given away by the offeror and the
total number of chances to obtain the free item being distributed by the offeror.
If the promotion utilizing the free item involves distribution by more than
one offeror or sponsor, the description of the initial odds and the actual current
odds also include a statement of the total number of each free item to be given
away by all offerors or sponsors and the total number of chances to obtain the
free item being distributed by all offerors or sponsors. The odds and verifiable
retail value shall be printed in the same size type as the principal description
of each free item and shall appear immediately adjacent to said description;
(E)
In a telephone or
door-to-door solicitation, inclusion of the information required by ORS 646.608(1)(n)
within 30 seconds after beginning the conversation.
(d)
When it makes a free
offer as described in subsection (b) or (c) of this section and, in order to
receive the free real estate, goods or services, the recipient is required to
pay money to the offeror, promoter or any other person for any fee, including
but not limited to a fee for postage, shipping, storage, handling, processing,
registration or verification, which terms are used herein for purposes of illustration
and not by means of limitation;
(e)
In the case of all
free goods or services offered on a random basis as described in paragraph (2)(c)(D)
of this rule, unless it retains for at least one year a list of the names and
addresses of all persons receiving free goods or services with a verifiable
retail value of $ 10 or more.
|
|
Compliance Guide:
Registration Made Easy.
- Online State Registration wizard for call campaign licensing.
- Wizard makes finding State DNC exemptions easy.
- Quickly answer questions with included regulatory guide.
|
|
