Or. Admin. R. 137-020-0410
137-020-0410 Definitions and Exemptions
(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 ORS 646.608(4) and ORS 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.
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