As used in this chapter, unless the context
requires otherwise:
(1) “Advertising” or “advertisement” means any public notice or
announcement of commodities for sale, services to be performed, equipment
or facilities for hire, or any other thing offered to the public, via
publishing or broadcasting media or by signs, banners, posters,
handbills, labels or similar devices, for the purpose of inducing,
directly or indirectly, the purchase or use of such commodities,
services, equipment or facilities.
(2) “Commercial” or “commercially used” means any application or
use in connection with or related to transactions in which, in exchange
for commodities received or services rendered, consideration is given in
terms of currency, negotiable instruments, credit, merchandise or any
other thing of value.
(3) “Commodity” means any merchandise, product or substance
produced or distributed for sale to, or use by, others.
(4) “Commodity in bulk form” means any quantity of a commodity that
is not a commodity in package form.
(5) “Commodity in package form” means any quantity of a commodity
put up or packaged in any manner in advance of sale, in units suitable
for either wholesale or retail sale by weight, volume, measure or count,
exclusive, however, of any auxiliary shipping container enclosing
packages that individually conform to the requirements of ORS 618.010 to
618.246. An individual item or lot of any commodity not in package form
as defined in this subsection, but on which there is marked a selling
price based on an established price per unit of weight or of measure, is
a commodity in package form.
(6) “Department” means the State Department of Agriculture.
(7) “Director” means the Director of Agriculture.
(8) “Inspector” means any state officer or employee designated by
the director as a supervisor of, or an inspector of, weights and measures.
(9) “Intrastate commerce” means any and all commerce or trade
begun, carried on and completed wholly within the limits of this state.
(10) “Introduced into intrastate commerce” means the time and place
at which the first sale and delivery of a commodity is made within this
state, the delivery being made either directly to the purchaser or to a
common carrier for shipment to the purchaser.
(11) “Liquid-fuel measuring device” means any meter, pump, tank,
gage or apparatus used for volumetrically determining the quantity of any
internal combustion engine fuel, liquefied petroleum gas or low-viscosity
heating oil.
(12) “National Institute of Standards and Technology” means the
National Institute of Standards and Technology of the Department of
Commerce of the United States.
(13) “Sale” and “sell” include barter and exchange.
(14) “Security seal” means a lead-and-wire seal, or similar
nonreusable closure, attached to a weighing or measuring instrument or
device for protection against undetectable access, removal, adjustment or
unauthorized use.
(15) “Vehicle” means any wheeled conveyance in, upon or by which
any property, livestock or commodity is or may be transported or drawn,
but does not include railroad rolling stock.
(16) “Weighing device” means any scale, balance or apparatus used
for gravimetrically determining the quantity of any commodity on a
discrete or continuous basis.
(17) “Weights and measures” means all weights and measures,
instruments and devices of every kind for weighing and measuring, and any
appliances and accessories associated with any or all such instruments
and devices. However, “weights and measures” does not include meters for
the measurement of electricity, gas or water when operated in a system of
a public utility, as that term is defined in ORS 757.005. None of the
provisions of ORS 618.010 to 618.246 apply to such public utility meters
or to any associated appliances or accessories. [Amended by 1973 c.293
§1; 1975 c.615 §1; 1977 c.132 §3; 1999 c.237 §1; 2003 c.14 §366; 2005
c.22 §413]It is the express intent and purpose of ORS 618.010
to 618.246 and 618.991 to establish statutory authority for the
administration, regulation and enforcement of weights and measures
requirements generally within this state. The objectives of state
supervision of weights and measures under ORS 618.010 to 618.246 include
the following:
(1) Ensuring that weights and measures in commercial service within
the state are suitable for their intended use, properly installed and
accurate and are so maintained by their owner or user.
(2) Preventing unfair dealing by weight or measure in any commodity
or service advertised, packaged, sold or purchased within this state.
(3) Making available to all users of physical standards or weighing
and measuring equipment the precision calibration and related
metrological certification capabilities of the weights and measures
facilities of the State Department of Agriculture.
(4) Promoting uniformity, to the extent such conformance is
practicable and desirable, between weights and measures requirements of
this state and those of other states and federal agencies.
(5) Encouraging desirable economic growth while protecting the
consumer through the adoption by rule of weights and measures
requirements as necessary to ensure equity among buyers and sellers.
[1973 c.293 §3; 2005 c.22 §414] The Director of Agriculture shall:
(1) Maintain custody of the state standards of weight and measure
and of the other standards and equipment provided for by ORS 618.010 to
618.246;
(2) Keep accurate records of all standards and equipment;
(3) Exercise general supervision over the weights and measures sold
or offered for sale or in use in this state; and
(4) Report to the Governor annually, and at such other times as the
Governor may require, on all of the activities of the director in
carrying out ORS 618.010 to 618.246. [1973 c.293 §5; 2005 c.22 §415]
Except for rulemaking, the duties and powers of the State Department of
Agriculture and the Director of Agriculture pursuant to ORS 618.010 to
618.246 may be delegated at the discretion of the director. [1973 c.293
§14; 2005 c.22 §416] (1) The State Department of
Agriculture is authorized to make any rules necessary to carry out ORS
618.010 to 618.246, but in making such rules the department shall
consider so far as is practicable and desirable the requirements
established by other states and by authority of the United States. Such
rules shall govern the use or application of weights and measures and
weights and measures transactions in this state.
(2) Such rules may:
(a) Establish standards of net weight, measure or count, and
reasonable standards of fill for any commodity in package form;
(b) Establish procedures governing the technical and reporting
activities to be followed, and prescribe report and record forms and
marks of approval and rejection to be used by inspectors of weights and
measures in the discharge of their duties;
(c) Prescribe exemptions for weights and measures from the sealing,
labeling or marking requirements of ORS 618.010 to 618.246;
(d) Establish procedures governing the voluntary registration of
commercial weighing and measuring device servicemen and service agencies;
(e) Establish schedules of fees for licensing commercial weighing
and measuring devices and for testing or certification;
(f) Prescribe specifications relating to the advertising, labeling,
dispensing and selling of commodities in bulk form to or by retail
outlets reasonably necessary for the protection of purchasers thereof;
(g) Establish guidelines to assure that amounts of commodities or
services sold or offered for sale are represented accurately and
informatively to all interested parties; and
(h) Prescribe specifications, tolerances and other technical
requirements for weights and measures so as to eliminate from use,
weights and measures:
(A) That are not accurate;
(B) That are of such construction that they are faulty, in that
they are not reasonably permanent in their adjustment or will not repeat
their indications correctly; or
(C) That facilitate the perpetration of deceit or misrepresentation.
(3) Nothing in subsection (2) of this section is intended to limit
the authority of the department to make any other rules necessary to
carry out ORS 618.010 to 618.246. [1973 c.293 §6; 1975 c.615 §2; 1977
c.132 §4]The State Department of Agriculture may utilize, for all
commercial purposes in this state, either that system of weights and
measures customarily used in the United States or the metric system of
weights and measures. In prescribing the basic units of weight and
measure, tables of weight and measure, weight and measure equivalents,
specifications, tolerances and other technical requirements for
commercial weighing and measuring devices, the department shall recognize
those published by the National Institute of Standards and Technology,
and they shall be applicable to weighing and measuring equipment and
transactions in this state. [1973 c.293 §15; 2003 c.14 §367](1) Standards of weight and measure that are
traceable to the United States prototype standards and that are supplied
by the federal government or that are otherwise approved as being
satisfactory by the National Institute of Standards and Technology shall
be the state’s primary standards of weight and measure.
(2) The state primary standards shall be kept in a safe and
suitable place in the metrology laboratory of the office of weights and
measures, and shall not be removed from the laboratory except for repairs
or for calibration as may be prescribed by the National Institute of
Standards and Technology. [1973 c.293 §16; 2003 c.14 §368] The state
shall supply secondary standards and such other equipment as is necessary
to carry out ORS 618.010 to 618.246. Such standards shall be verified, by
comparison with the state primary standards prescribed in ORS 618.041,
upon their initial receipt and thereafter as often as the State
Department of Agriculture considers necessary. [1973 c.293 §17; 2005 c.22
§417]The State Department of Agriculture by rule shall
prescribe the specifications, tolerances and other technical requirements
applicable to commercial weights and measures within this state. In so
doing the department shall take cognizance of those uniform requirements
recommended by the National Institute of Standards and Technology and
published in appropriate National Institute of Standards and Technology
handbooks and supplements thereto. For the purposes of ORS 618.010 to
618.246, weights and measures are correct when in conformance with all
applicable sections of ORS 618.010 to 618.246 and rules promulgated
pursuant thereto. All other weights and measures are incorrect. [1973
c.293 §18; 2003 c.14 §369; 2005 c.22 §418]The State Department of Agriculture may
inspect and test, to ascertain if they are correct, all weights and
measures sold, offered or exposed for sale. The department may, as often
as it considers necessary, cause to be inspected and tested, to ascertain
if they are correct, all weights and measures commercially used for one
or more of the following purposes:
(1) Determining the weight, measurement or count of commodities or
things sold, offered or exposed for sale, on the basis of weight, measure
or count.
(2) Computing the basic charge or payment for services rendered on
the basis of weight, measure or count. However, the department by rule
may provide for tests to be made on representative samples of such
devices. The lots of which samples are representative shall be held to be
correct or incorrect upon the basis of the results of the inspection and
tests on such samples.
(3) Determining quantities or amounts when a charge is made for
such determination. However, in the case of single-service devices
designed to be used commercially only once and to be then discarded, or
devices uniformly mass-produced, as by means of a mold or die, and not
susceptible of individual adjustment, the inspection and testing of each
individual device is not required and the inspecting and testing
requirements of this section will be satisfied when inspections and tests
are made on representative samples of such devices. The lots of which
samples are representative shall be held to be correct or incorrect upon
the basis of the results of the inspections and tests on such samples.
[1973 c.293 §8; 1977 c.132 §5; 2005 c.22 §419]The State Department of Agriculture shall, from time to
time, test all weights and measures used in checking the receipt or
disbursement of supplies in every institution for the maintenance of
which moneys are appropriated by the Legislative Assembly, and report its
findings in writing to the supervisory board or to the executive officer
of the institution concerned. [1973 c.293 §7]The State Department of Agriculture shall investigate
complaints made to it concerning violations of ORS 618.010 to 618.246
and, upon its own initiative, shall conduct such investigations as it
considers appropriate to develop information relating to prevailing
procedures in commercial quantity determination and relating to possible
violations of ORS 618.010 to 618.246, and in order to promote the general
objective of accuracy in the determination and representation of quantity
in commercial transactions. [1973 c.293 §9; 2005 c.22 §420]When necessary for the enforcement
of ORS 618.010 to 618.246, or rules promulgated pursuant thereto, the
State Department of Agriculture is:
(1) Authorized to enter during normal business hours any premises,
including buildings or mobile facilities, where commercial transactions
are conducted, commodities are located, or weights and measures are
employed. If such premises are not open to the public, a department
representative shall first present the credentials of the representative
and obtain consent before making entry thereto. If such entry is denied,
the department may apply for a search warrant from any person authorized
to issue search warrants.
(2) Empowered to stop any commercial vehicle and, after presentment
of credentials, require the person in charge to move the vehicle to a
designated place for inspection on probable cause that a violation of ORS
618.010 to 618.246 has occurred or is occurring.
(3) Authorized, in the public interest, to issue written notices or
warnings to violators for minor infractions of ORS 618.010 to 618.246 in
lieu of referring the matter to the district attorney. [1973 c.293 §13;
1999 c.59 §183; 2005 c.22 §421](1) The State Department of Agriculture shall
approve for use such weights and measures as it finds upon inspection and
test to be correct, as provided in ORS 618.051, and shall reject such
weights and measures as it finds upon inspection or test to be incorrect,
as provided in ORS 618.051, but which in its best judgment are
susceptible of satisfactory repair.
(2) In carrying out this section and pursuant to ORS 618.031, the
department may use such terms as “rejected,” “illegal,” “incorrect,”
“condemned,” “correct,” “tested,” “approved,” “certified” or terms of
similar import on marks or tags or certificates necessary to convey to
all interested parties the condition or status of the device or apparatus
so marked or tagged.
(3) In accordance with ORS 561.605 to 561.630, the department may
condemn, seize and destroy incorrect weights and measures that are not
susceptible of satisfactory repair. Similarly, weights and measures that
have been rejected may also be seized, confiscated and destroyed by the
department if such are not corrected as required by ORS 618.081, or if
such weights and measures are used or disposed of contrary to the
requirements of ORS 618.081. [1973 c.293 §12]The owner of weights and measures rejected pursuant to ORS 618.076
shall cause such weights and measures to be made correct within the time
specified by the State Department of Agriculture or may dispose of such
weights and measures in such manner as is authorized by the department.
Weights and measures that have been rejected shall not again be used
commercially until they have been officially reexamined by the department
and found to be correct, or approval for use is given by the department,
or the rejection tag has been removed and the rejected device repaired
and placed in service by a person or firm so authorized by the
department. [1973 c.293 §20]
(1) The State Department of Agriculture is authorized to issue stop-use
orders, hold orders and removal orders with respect to weights and
measures being, or susceptible of being, commercially used, and to issue
hold orders and removal orders with respect to packages or amounts of
commodities sold, offered or exposed for sale, or in process of delivery,
whenever in the course of its enforcement of ORS 618.010 to 618.246 it is
considered necessary.
(2) No person shall use, remove from the premises or vehicles
specified, or fail to remove from the premises or vehicles specified, any
weight, measure or package or amount of commodity contrary to the terms
of a stop-use order, hold order or removal order issued under the
authority of this section. [1973 c.293 §11; 2005 c.22 §422]A security seal shall be affixed to any adjustment mechanism,
readout compensator, primary indicator, or retainer to prevent removal of
a measurement element, in such manner as the State Department of
Agriculture by rule may prescribe, on all commercial weights and
measures. [1973 c.293 §19]
No person shall:
(1) Use, or have in the possession of the person for the purpose of
using for any commercial purpose specified in ORS 618.056, sell, offer or
expose for sale or hire, or have in the possession of the person for the
purpose of selling or hiring, an incorrect weight or measure or any
device or instrument used or intended for use to falsify any weight or
measure.
(2) Use, or have in the possession of the person for the purpose of
current use for any commercial purpose specified in ORS 618.056, a weight
or measure that does not bear a seal or mark such as is specified in ORS
618.076 unless such weight or measure has been exempted from testing by
ORS 618.056 or by a rule of the State Department of Agriculture or unless
the device has been placed in service as provided by rule of the
department.
(3) Dispose of any rejected or condemned weight or measure in a
manner contrary to ORS 618.010 to 618.246 or rules promulgated pursuant
thereto.
(4) Remove, alter or deface any security seal, tag, seal or mark
placed on any weight or measure by the department.
(5) Sell, offer or expose for sale, less than the quantity the
person represents of any commodity, thing or service.
(6) Take more than the quantity the person represents of any
commodity, thing or service when, as buyer, the person furnishes the
weight or measure by means of which the amount of the commodity, thing or
service is determined.
(7) Keep for the purpose of sale, advertise, sell, offer or expose
for sale, any commodity, thing or service in a condition or manner
contrary to ORS 618.010 to 618.246 or rules promulgated pursuant thereto.
(8) Use in retail trade, except in the preparation of packages put
up in advance of sale and of medical prescriptions, a weight or measure
that is not so positioned that its indications may be accurately read and
the weighing or measuring operation observed from a reasonable customer
position.
(9) Violate any other provision of ORS 618.010 to 618.246 or rules
promulgated pursuant thereto. [1973 c.293 §50; 2005 c.22 §423]For the purposes of ORS 618.010 to 618.246, proof of the existence
of a weight or measure or a weighing or measuring instrument or device in
or about any building, enclosure, stand or vehicle in which or from which
it is shown that buying or selling is commonly carried on is presumptive
proof of the regular use of such weight or measure or weighing or
measuring instrument or device for commercial purposes and of such use by
the person in charge of such building, enclosure, stand or vehicle. [1973
c.293 §51; 2005 c.22 §424]In addition to the authority otherwise granted to the State
Department of Agriculture to inspect and test weighing or measuring
instruments or devices, the department may, at the request of an owner or
user thereof, inspect and test weighing or measuring instruments or
devices to ascertain if they are correct. As authorized by ORS 618.031
(2)(e), the department may establish fees for performing the services and
the person requesting the services shall pay the established fees to the
department. [1977 c.132 §2]Note: 618.115 was added to and made a part of ORS chapter 618 by
legislative action but was not added to any smaller series therein. See
Preface to Oregon Revised Statutes for further explanation.LICENSING OF COMMERCIALLY OPERATED WEIGHING OR MEASURING
INSTRUMENTSNo person shall operate or use
for commercial purposes within the state any weighing or measuring
instrument or device specified in ORS 618.141 that is not licensed in
accordance with the requirements of ORS 618.010 to 618.246 unless
exempted as provided in ORS 618.126. Any license issued under ORS 618.010
to 618.246 applies only to the instrument or device specified in the
license. However, the State Department of Agriculture may permit such
license to be applicable to a replacement for the original instrument or
device. [1973 c.293 §30; 2005 c.22 §425] Commercial weighing
or measuring instruments or devices specified in ORS 618.141 are exempt
from the licensing requirements in ORS 618.121 if any of the following
apply:
(1) Ownership and use of the instrument or device is limited to
federal, state or local government agencies in the performance of
official functions.
(2) The instrument or device is of a readily portable type, not
intended for use within the state in excess of 30 days annually, and for
which proof exists of satisfactory examination within the immediately
preceding six months by a state or local weights and measures authority.
[1973 c.293 §31; 1989 c.405 §5](1) The licenses required by ORS
618.010 to 618.246 are in addition to any other licenses required by law.
(2) If ORS 618.010 to 618.246 and 618.991 are in conflict with any
other statutes, ordinances or regulations, the provisions of ORS 618.010
to 618.246 and 618.991 take precedence. [1973 c.293 §53; 2005 c.22 §426]
(1) The license fee for each type or class of commercial weighing or
measuring instrument or device shall be established by the State
Department of Agriculture in an amount not to exceed the maximum limits
set forth in ORS 618.141. Such fees shall be established in the amounts
necessary for the department to carry out and enforce the provisions of
ORS 618.010 to 618.246 relating to the supervision of commercial weighing
and measuring instruments or devices, and to maintain an emergency fund
with an unencumbered balance in an amount not to exceed the cost of
administering ORS 618.010 to 618.246 during a representative four-month
period in order to assure the orderly supervision of commercial weighing
and measuring instruments or devices within this state.
(2) License fees become past due July 1 each year for renewals, and
on the date of first commercial use for original installations.
(3) All moneys received by the department pursuant to ORS 618.010
to 618.246 shall be paid into the Department of Agriculture Service Fund.
Such moneys are continuously appropriated to the department for the
purpose of administering those provisions of ORS 618.010 to 618.246
relating to testing, inspection, licensing and regulation of commercial
weighing and measuring instruments or devices. [1973 c.293 §32; 1977
c.132 §8; 1979 c.499 §21] The license fees established pursuant
to ORS 618.136 for weighing or measuring instruments or devices shall not
exceed the following:
___________________________________________________________________________
___Discrete Weighing Devices Maximum
(Manufacturer’s rated capacity) Fee0-400 pounds............................... $ 20
401-1,160 pounds........................ $ 30
1,161-7,500 pounds..................... $ 60
7,501-60,000 pounds................... $ 130
60,001 pounds or more................ $ 210
Static railroad track scales........... $ 1,000
Continuous Weighing Systems
(Manufacturer’s rated capacity)
Under 10 tons per hour................ $ 160
10-150 tons per hour.................... $ 250
151-1,000 tons per hour............... $ 500
Over 1,000 tons per hour............. $ 1,100
In-motion railroad
track scales................................... $ 1,000
Liquid-Fuel Metering Devices for
Noncorrosive Fuels Contained at
Atmospheric Pressure (Maximum device flowrate)
Under 20 gallons per minute........ $ 25
20-150 gallons per minute............ $ 45
Over 150 gallons per minute........ $ 75Special Liquid-Fuel Measuring
Equipment
(Type)
Liquefied petroleum gas meters
one inch pipe
diameter or under........................ $ 70
Over one inch
pipe diameter.............................. $ 125
Tanks, under 500 gallons capacity
when used as measure containers
with or without gage rods or
markers......................................... $ 100
Tanks, 500 or more gallons capacity
when used as measure containers
with or without gage rods or
markers......................................... $ 200
(1) All weighing and measuring instrument or device licenses issued under
ORS 618.010 to 618.246 expire on June 30 next after the date of issuance.
(2) In accordance with the provisions of ORS chapter 183, any
license issued under ORS 618.010 to 618.246 may be suspended or revoked
by the State Department of Agriculture if the instrument or device is
operated or used contrary to ORS 618.010 to 618.246 or rules promulgated
pursuant thereto. [1973 c.293 §33; 2005 c.22 §427]The owner or person in possession of weighing or
measuring instruments or devices for which the license fees have not been
paid in the manner required by ORS 618.010 to 618.246 may not use the
weighing or measuring instruments or devices for commercial purposes.
[1973 c.293 §35; 1979 c.333 §1; 2005 c.22 §428](1) The State Department of Agriculture shall
prescribe such forms, certificates and identification tags as it
considers necessary to carry out the licensing provisions of ORS 618.010
to 618.246.
(2) The department shall provide a certificate or other evidence of
device license compliance to each person fulfilling the weighing or
measuring device licensing requirements of ORS 618.010 to 618.246.
(3) Application for a weights and measures license shall be made
upon a form prescribed and furnished by the department and shall contain
such information as the department may require. [1973 c.293 §36; 2005
c.22 §429]When weighing or measuring instruments or
devices specified in ORS 618.141 are in commercial use and a valid
license for such instruments or devices has not been procured by the
owner or operator thereof, the State Department of Agriculture after
giving notice of such requirements to the owner or operator is authorized
to prohibit the further commercial use of the unlicensed instruments or
devices until the proper license has been issued. The department may
employ and attach to the instruments or devices such forms, notices or
security seals as it considers necessary to prevent the continued
unauthorized use of the instruments or devices. [1973 c.293 §37]COMMODITY SALES REGULATIONS(1) The State
Department of Agriculture, as often as necessary to provide adequate
protection, shall weigh or measure and inspect packages or amounts of
commodities sold, offered or exposed for sale, or in the process of
delivery, to determine whether they contain the amounts represented and
whether they are sold, offered or exposed for sale in accordance with ORS
618.010 to 618.246. If such packages or amounts of commodities are found
not to contain the amounts represented, or are found to be sold, offered
or exposed for sale in violation of ORS 618.010 to 618.246, the
department may order them withheld from sale and may so mark or tag them.
(2) In carrying out the provisions of this section, the department
may employ recognized sampling procedures under which the compliance of a
given lot of packages will be determined on the basis of the result
obtained on a sample selected from and representative of such lot.
(3) No person shall:
(a) Sell, offer or expose for sale, in intrastate commerce, any
package or amount of commodity that has been ordered withheld from sale
and marked or tagged as provided in this section until such package or
amount of commodity has been brought into full compliance with all the
requirements of ORS 618.010 to 618.246; or
(b) Otherwise dispose of any package or amount of the commodity
that has been ordered withheld from sale and marked or tagged as provided
in this section and that has not been brought into compliance with the
requirements of ORS 618.010 to 618.246, in any manner, except with the
specific approval of the department. [1973 c.293 §10; 2005 c.22 §430] (1)
Commodities in liquid form shall be sold only by liquid measure or weight
and, except as otherwise provided in ORS 618.010 to 618.246, commodities
not in liquid form shall be sold only by weight, measure of length or
area, or count. However, liquid commodities may be sold by weight, and
commodities not in liquid form may be sold by count only if such methods
give accurate information as to the quantity of commodity sold.
(2) The provisions of subsection (1) of this section do not apply
to:
(a) Commodities sold for immediate consumption on the premises
where sold;
(b) Vegetables sold by the head or bunch;
(c) Commodities in containers standardized by the laws of this
state or the United States;
(d) Commodities in package form when there exists a general
consumer usage to express the quantity in some other manner;
(e) Concrete aggregates, concrete mixtures and loose solid
materials such as earth, soil, gravel, crushed stone and like substances
sold by cubic measure; or
(f) Unprocessed vegetable and animal fertilizer sold by cubic
measure.
(3) The State Department of Agriculture may make such reasonable
rules as are necessary to ensure that the amounts of commodity for sale
reflect accurate and fair practices. [1973 c.293 §21; 2005 c.22 §431](1) Except as otherwise provided in ORS
618.010 to 618.246 and the rules promulgated pursuant thereto, any
commodity in package form introduced, delivered for introduction into or
received in intrastate commerce and sold, offered or exposed for sale in
intrastate commerce shall bear on the outside of the package definite,
plain and conspicuous declarations of:
(a) The identity of the commodity in the package, unless it is
visible through the wrapper;
(b) The net quantity of the contents in terms of weight, measure or
count; and
(c) In the case of any package sold, offered or exposed for sale in
any place other than on the premises where packed, the name and place of
business of the manufacturer, packer or distributor, as may be prescribed
by rule.
(2) In connection with the requirements of subsection (1)(b) of
this section, neither the qualifying term “when packed” or any words of
similar import, nor any term qualifying a unit of weight, measure or
count such as “jumbo,” “giant” or “full” that tends to exaggerate the
amount of commodity in a package shall be used.
(3) In connection with the requirements of subsection (1)(b) of
this section, the State Department of Agriculture by rule may establish:
(a) Reasonable variations to be allowed, including variations below
the declared weight or measure caused by ordinary and customary exposure,
only after the commodity is introduced into intrastate commerce, to
conditions that normally occur in good distribution practice and that
unavoidably result in decreased weight or measure. However, such
variations may not be permitted to the extent that the average of the
quantities in the packages comprising a shipment, display or other lot is
below the quantity stated, and no unreasonable shortage in any package
shall be permitted even though overages in other packages in the same
shipment, display or lot compensate for such shortage;
(b) Exemptions for small packages; and
(c) Exemptions for commodities put up in variable weights or sizes
for sale intact and either customarily not sold as individual units or
customarily weighed or measured at time of sale to the consumer. [1973
c.293 §22; 2005 c.22 §432] In addition to the
declarations required by ORS 618.211, any commodity in package form which
is one of a lot containing random weights, measures or counts of the same
commodity and which states the total selling price of the package, shall
bear on the outside of the package a plain and conspicuous declaration of
the corresponding price per unit of weight, measure or count in terms
consistent with ORS 618.206. [1973 c.293 §23]No commodity in package form shall be so wrapped,
nor shall it be in a container so made, formed or filled as to mislead
the purchaser as to the quantity of the contents of the package, and the
contents of a container shall not fall below such reasonable standard of
fill as may be prescribed for the commodity by the State Department of
Agriculture. [1973 c.293 §24](1) Whenever a commodity
in package form is advertised in any manner and the retail price of the
package is stated in the advertisement, there shall be closely and
conspicuously associated with such statement of price a declaration of
the quantity of contents of the package as is required to appear on the
package.
(2) If the applicable law requires a dual declaration of net
quantity to appear on the package, only the declaration that sets forth
the quantity in terms of the smaller unit of weight or measure need
appear in the advertisement.
(3) There shall not be included as part of the declaration required
under this section such qualifying terms as “when packed,” “minimum,”
“not less than” or any other terms of similar import, nor any term
qualifying a unit of weight, measure or count such as “jumbo,” “giant” or
“full” that tends to exaggerate the amount of commodity in the package.
[1973 c.293 §25]The word “weight” when referring to the quantity of any
commodity means net weight. Whenever any commodity is sold on the basis
of weight, the net weight of the commodity shall be employed, and all
contracts concerning commodities shall be so construed. [1973 c.293 §26](1) Whenever any commodity or service is sold, offered or exposed
for sale, by weight, measure or count, the price shall not be
misrepresented, nor shall the price be represented in any manner
calculated or tending to mislead or deceive an actual or prospective
purchaser.
(2) Whenever an advertised, posted or labeled price per unit of
weight, measure or count includes a fraction of a cent, all elements of
the fraction shall be prominently displayed and the numeral or numerals
expressing the fraction shall be immediately adjacent to, of the same
general design and style as, and at least one-half the height and width
of, the numerals representing the whole cents. [1973 c.293 §27]In the case of sales to or by retail outlets
including restaurants, hospitals, boarding houses and similar
institutions, sales of commodities in bulk form whose value exceeds $10
shall be accompanied by a printed or written delivery ticket or invoice
bearing the following information:
(1) Name and address of the vendor and the purchaser.
(2) Date and place of the delivery.
(3) Product identity and net quantity delivered.
(4) Quantity upon which charges are based if different from the
delivered quantity by reason of processing customarily performed
subsequent to a sale, but prior to delivery to a purchaser. [1973 c.293
§28](1) Except for immediate consumption on the premises where
sold, or as one of several elements comprising a ready-to-eat meal sold
as a unit for consumption elsewhere than on the premises where sold, all
poultry, or parts thereof, meat, meat products, fish and seafood, sold,
offered or exposed for sale as food, shall be sold, offered or exposed
for sale by weight.
(2) If meat, poultry, fish or seafood is combined with or
associated with some other food element to form either a distinctive food
product or a food combination, such food product or combination shall be
sold, offered or exposed for sale by weight. The quantity representation
may be the total weight of the food product or combination and a quantity
representation need not be made for each of the several elements of the
food product or combination.
(3) In the case of ready-to-cook whole-carcass stuffed poultry,
ready-to-cook stuffed poultry roasts, rolls, bars and logs, and
ready-to-cook stuffed poultry products designated by terms of similar
import, the label must show the total net weight and, in close proximity,
the net weight of the poultry exclusive of stuffing ingredients. [1973
c.293 §29]RAILROAD TRACK SCALE REGULATION(1) All railroad track scales within this state used to
weigh cars, commodities or freight offered for shipment shall be under
the jurisdiction of the Director of Agriculture and subject to inspection
by the State Department of Agriculture. The department may also test
other track scales.
(2) The department shall, from time to time, test and inspect all
such scales. No track scale shall be used in determining weights for the
purpose of determining freight charges without first obtaining a seal
from the department approving such use.
(3) The department shall approve a suitable sealing device, and
cause all track scales inspected under this section to be officially
sealed with such device, when such scales are found, or made to be in
compliance with the department’s rules.
(4) The department may procure or otherwise secure the use of the
car, apparatus or facilities used for tests and inspections as the
department may require for the purposes of this section. Such car,
apparatus or facilities may be used jointly with another state or states
to test track scales and for that purpose may be taken beyond the limits
of the state under such terms and conditions agreed upon with such other
states. The car and apparatus needed to test track scales shall be
transported free by every railroad in this state. [1989 c.405 §2]LICENSING LAW ENFORCEMENT(1) As used in this
section:
(a) “Deputy state sealer” means the person appointed by the
Director of Agriculture to supervise the weights and measures section.
(b) “Inspector” means a state employee designated by the director
as a supervisor or inspector of weights and measures.
(2) In enforcing violations subject to penalty under ORS 618.991,
the director has authority to issue and serve citations to any person
violating such laws.
(3) The director may delegate the powers referred to in subsection
(2) of this section to the deputy state sealer and to inspectors. The
deputy state sealer and inspectors with authority to serve citations
under this section shall issue those citations in the manner provided by
ORS chapter 153.
(4) Upon issuance of a citation for a violation subject to penalty
under ORS 618.991, the deputy state sealer or inspector issuing the
citation shall retain a record copy for the State Department of
Agriculture. [1973 c.374 §5; 1999 c.1051 §109; 2005 c.22 §434]SECURITY SEAL ENFORCEMENTAs used in ORS 618.501 to 618.551 and 618.995,
unless the context requires otherwise:
(1) “Appropriate court” means the circuit court of a county:
(a) Where one or more of the defendants reside;
(b) Where one or more of the defendants maintain a principal place
of business;
(c) Where one or more of the defendants are alleged to have
committed a security seal violation; or
(d) With the defendant’s consent, where the prosecuting officer
maintains an office.
(2) “Prosecuting attorney” means the Attorney General or the
district attorney of any county in which a security seal violation is
alleged to have been committed.
(3) “Security seal” means a lead-and-wire seal or similar
nonreusable closure, attached to a weighing or measuring instrument or
device for protection against undetectable access, removal, adjustment or
unauthorized use.
(4) “Security seal violation” means the use, in violation of this
chapter or any rule promulgated pursuant thereto, of any liquid or
gaseous metering instrument or device to which a security seal is
required to be affixed, when the security seal has been broken or removed.
(5) A “willful violation” occurs when the person committing the
violation knew or should have known that the conduct of the person was a
violation. [1973 c.294 §2; 2003 c.14 §370; 2005 c.22 §435](1) A
prosecuting attorney who has probable cause to believe that a person is
committing or has committed a security seal violation may bring suit in
the name of the State of Oregon in the appropriate court to restrain such
person from committing the alleged violation.
(2) Before filing a suit under subsection (1) of this section, the
prosecuting attorney shall in writing notify the person charged of the
alleged security seal violation and the relief to be sought. Such notice
shall be served in the manner set forth in ORS 618.526 for the service of
investigative demands. The person charged thereupon shall have 10 days
within which to execute and deliver to the prosecuting attorney an
assurance of voluntary compliance. Such assurance shall set forth what
actions, if any, the person charged intends to take with respect to the
alleged violation. The assurance of voluntary compliance shall not be
considered an admission of a violation for any purpose. If the
prosecuting attorney is satisfied with the assurance of voluntary
compliance, it may be submitted to an appropriate court for approval and
if approved shall thereafter be filed with the clerk of the court.
Violation of an assurance of voluntary compliance which has been approved
by and filed with the court constitutes a contempt of court. The notice
of the prosecuting attorney under this subsection is not a public record
until the expiration of 10 days from the service of the notice.
(3) Notwithstanding subsection (2) of this section, if the
prosecuting attorney alleges that the prosecuting attorney has reason to
believe that the delay caused by complying with the provisions of
subsection (2) of this section would cause immediate harm to the public
health, safety or welfare, the prosecuting attorney may immediately
institute a suit under subsection (1) of this section.
(4) A temporary restraining order may be granted without prior
notice to the person if the court finds there is a threat of immediate
harm to the public health, safety or welfare. Such a temporary
restraining order shall expire by its terms within such time after entry,
not to exceed 10 days, as the court fixes, unless within the time so
fixed the order, for good cause shown, is extended for a like period or
unless the person restrained consents that it may be extended for a
longer period.
(5) The court may award reasonable attorney fees at trial and on
appeal to the prevailing party in a suit brought under this section. If
the defendant prevails in such a suit and the court finds that the
defendant had in good faith submitted to the prosecuting attorney a
satisfactory assurance of voluntary compliance prior to the institution
of the suit or that the prosecuting attorney, in a suit brought under
subsection (3) of this section, did not have reasonable grounds to
proceed under that subsection, the court shall award reasonable attorney
fees at trial and on appeal to the defendant. If the state prevails, the
reasonable expenses of investigation, preparation and prosecution shall
be taxed against the defendant, upon application of the prosecuting
attorney, in the same manner as costs are taxed and shall be in addition
thereto. [1973 c.294 §3; 1981 c.897 §70] The court may make such additional
orders or judgments as may be necessary to restore to any person in
interest any moneys or property, real or personal, of which the person
was deprived by means of a security seal violation, or as may be
necessary to insure cessation of such violations, pursuant to ORS
618.506. [1973 c.294 §4](1) Any person
who purchases or leases goods or services and thereby suffers any
ascertainable loss of money or property, real or personal, as a result of
a willful security seal violation may bring an individual action in an
appropriate court to recover actual damages or $200, whichever is
greater. The court or the jury, as the case may be, may award punitive
damages and the court may provide such equitable relief as it considers
necessary or proper.
(2) Upon commencement of any action brought under subsection (1) of
this section, the clerk of the court shall mail a copy of the complaint
or other initial pleading to the Attorney General and, upon entry of any
judgment in the action, shall mail a copy of such judgment to the
Attorney General.
(3) In any action brought by a person under this section, the court
may award to the prevailing party reasonable attorney fees at trial and
on appeal and costs.
(4) Any permanent injunction or judgment or order of the court made
under ORS 618.506 or 618.511 is prima facie evidence, in an action
brought under this section, that the respondent committed a security seal
violation, but an assurance of voluntary compliance, whether or not
approved by the court, shall not be evidence of such violation.
(5) Actions brought under this section shall be commenced within
one year from the discovery of the security seal violation. However,
whenever any complaint is filed by a prosecuting attorney to prevent,
restrain or punish security seal violations, the running of the statute
of limitations with respect to every private right of action under this
section and based in whole or in part on any matter complained of in the
proceeding shall be suspended during the pendency thereof. [1973 c.294
§5; 1981 c.897 §71; 1995 c.618 §91; 2003 c.576 §526] (1) When it
appears to the prosecuting attorney that a person has committed or is
committing a security seal violation, the attorney may execute in writing
and cause to be served an investigative demand upon any person who is
believed to have information, documentary material or physical evidence
relevant to the alleged violation. The investigative demand shall require
such person, under oath or otherwise, to appear and testify or to produce
relevant documentary material or physical evidence for examination, at
such reasonable time and place as may be stated in the investigative
demand or to do any of the foregoing, concerning the advertisement, sale
or offering for sale of any goods or services or the conduct of any trade
or commerce which is the subject matter of the investigation.
(2) At any time before the return date specified in an
investigative demand, or within 20 days after the demand has been served,
whichever period is shorter, a petition to extend the return date, or to
modify or set aside the demand, stating good cause including privileged
material, may be filed in the appropriate court. [1973 c.294 §6] Service of any
investigative demand under ORS 618.521 shall be made personally within
this state. If personal service cannot be made, substituted service
therefor may be made in the following manner:
(1) Personal service thereof without this state;
(2) The mailing thereof by registered or certified mail to the
last-known place of business, residence or abode within or without this
state of such person for whom the same is intended;
(3) As to any person other than a natural person, in the manner
provided for service of summons in an action or suit; or
(4) Such service as the court may direct in lieu of personal
service within this state. [1973 c.294 §7] (1) If any
person after being served with an investigative demand under ORS 618.526,
fails to obey an investigative demand issued by the prosecuting attorney,
the prosecuting attorney may, after notice, apply to an appropriate court
and, after hearing thereon, request an order:
(a) Granting injunctive relief to restrain the person from engaging
in the conduct of any activity that is involved in the alleged or
suspected violation; or
(b) Granting such other relief as may be required, until the person
obeys the investigative demand.
(2) Any disobedience of any final order of a court under this
section shall be punished as a contempt of court. [1973 c.294 §8]
Upon petition by the prosecuting attorney, the court may, in its
discretion, order suspension or forfeiture of the license for any liquid
or gaseous metering instrument or device operated in violation of the
terms of any injunction issued under ORS 618.506. [1973 c.294 §10]A district attorney shall make a full report to
the Attorney General of any action, suit, or proceeding prosecuted by
such district attorney under ORS 618.506 to 618.541 and 618.995,
including the final disposition of the matter, and shall file with the
Attorney General copies of all assurances of voluntary compliance
accepted under ORS 618.506. [1973 c.294 §11]The remedies provided in ORS 618.506 to 618.541 and 618.995 are
in addition to all other remedies, civil or criminal, existing at common
law or under the laws of this state. [1973 c.294 §12]PENALTIES(1) Violation of ORS 618.086, 618.096, 618.121
or 618.201 is punishable as follows:
(a) If the violator is an individual, by imprisonment for not more
than six months, or a fine not to exceed $500, or both.
(b) If the violator is a person other than an individual, by a fine
of not more than $2,500.
(2) For the purposes of this section, each day of violation of ORS
618.086, 618.096, 618.121 or 618.201 is a separate offense and the
penalties provided in subsection (1) of this section apply to each such
offense. [1973 c.293 §54] (1) Any person who willfully violates the
terms of an injunction issued under ORS 618.506 shall forfeit and pay to
the state a civil penalty of not more than $1,000 per violation. For the
purposes of this section, the court issuing the injunction shall retain
jurisdiction and the cause shall be continued, and in such cases the
prosecuting attorney acting in the name of the state may petition for
recovery of civil penalties.
(2) Any person who by an assurance of voluntary compliance
submitted under ORS 618.506 agrees not to commit a security seal
violation and thereafter willfully violates such assurance shall forfeit
and pay to the state a civil penalty of not more than $1,000 per
violation. The prosecuting attorney may apply to an appropriate court for
recovery of such civil penalty.
(3) In any suit brought under ORS 618.506, if the court finds that
a person is willfully committing or has willfully committed a security
seal violation, the prosecuting attorney, upon petition to the court, may
recover, on behalf of the state, a civil penalty not exceeding $500 per
violation. [Formerly 618.536]
_______________
|
