Section 407.1085

Title XXVI TRADE AND COMMERCE

Chapter 407

Effective - 28 Aug 2008   

  407.1085.  Exemptions — attorney general to receive complaints. — 1.  The following acts or practices are exempt from the provisions of sections 407.1070 to 407.1082:

  (1)  Telephone calls in which the sale of merchandise is not completed, and payment or authorization of payment is not required, until after a face-to-face sales presentation by the telemarketer or seller; or

  (2)  Telephone calls in which the sale of merchandise is completed and a written contract is forwarded to the consumer so long as the consumer may return the merchandise within fourteen days of receipt of the merchandise and receive a refund of any moneys paid except for any coverage, fees or services earned; provided that the telemarketer shall inform the consumer at the time of the call that:

  (a)  A written contract regarding the sale of the merchandise will be forwarded to the consumer;

  (b)  The approximate date of the delivery of the merchandise; and

  (c)  The consumer will have a right to terminate the contract within fourteen days of receipt of the merchandise, and upon returning the merchandise, shall have a right to a refund as provided in this subdivision.  

­

The term "merchandise" as used in this subdivision shall mean merchandise sold by a person, institution or company that is under the direction and supervision of the director of the department of commerce and insurance or federally chartered banks, savings and loans and credit unions, but shall not mean a person or company that is under the direction and supervision of the director of the division of professional registration or any board assigned thereto;

  (3)  Telephone calls initiated by a consumer that:

  (a)  Are not the result of any advertisement by a seller or telemarketer;

  (b)  Are in response to an advertisement through any media, other than direct mail or telemarketing, which discloses the name of the seller and the identity of the merchandise; provided that, this exemption shall not apply to calls initiated by the consumer in response to an advertisement that offers a prize or investment opportunity, or is used to engage in telemarketing activities prohibited by subdivision (6) or (7) of section 407.1076; or

  (c)  Are in response to direct mail solicitations that clearly and conspicuously disclose and do not misrepresent the material information required by subsection 2 of section 407.1073; provided that, this exemption does not apply to calls initiated by the consumer in response to an advertisement that offers a prize or investment opportunity, or is to engage in telemarketing activities prohibited by subdivision (6) or (7) of section 407.1076; or

  (d)  Are in response to the mailing of a catalog which contains a written description or illustration of the goods or services offered for sale; includes the business address of the seller, includes multiple pages of written materials or illustrations; and has been issued not less frequently than once a year, when the seller or telemarketer does not contact consumers by telephone but only receives calls initiated by consumers in response to the catalog, and stops further solicitation of items not in a catalog when the consumer states that he or she is not interested in any further solicitations; or

  (4)  Telephone calls or messages:

  (a)  To any consumer with such consumer's prior express invitation or permission;

  (b)  To any consumer with whom the seller has an established business relationship; or

  (c)  By or on behalf of any entity over which either a state or federal agency has regulatory authority to the extent that:

  a.  Subject to such authority, the entity is required to maintain a license, registration, certificate or permit to sell or provide the merchandise being offered through telemarketing; and

  b.  As of August 28, 2000, the state or federal agency has, directly or through a delegation of authority which is enforceable pursuant to state or federal law, promulgated rules that regulate the telemarketing sales practices of the entity for the merchandise that entity offers through telemarketing and are reasonably consistent with the requirements of section 407.1070 through section 407.1079 and which allow consumer redress pursuant to that agency's rules or applicable federal law;

  (d)  Between a telemarketer and any business except calls involving the retail sale of nondurable office and cleaning supplies.

  2.  The office of the attorney general shall receive telemarketing complaints by means of a toll-free telephone number, by a notice in writing or by electronic means.  Complaints against entities who are licensed, certificated or permitted and whose telemarketing practices are regulated by the same state or federal agency and which agency has rules regulating telemarketing practices shall be forwarded for investigation by the office of the attorney general to such agency.  All other complaints shall be handled by the office of the attorney general.

­­--------

(L. 2000 S.B. 763, A.L. 2008 S.B. 788)