RS 45:822

§822. Definitions A. As used in this Chapter, the following terms and phrases shall have the meanings hereinafter ascribed to them: (1) "Department" means the Department of Justice. (2) "Items" means any goods and services, and includes coupon books which are to be used with businesses other than the seller's business. (3) "Owner" means a person who owns or controls ten percent or more of the equity of, or otherwise has claim to ten percent or more of the net income of a telephonic seller. (4) "Person" includes an individual, firm, association, corporation, partnership, joint venture, or any other business entity. (5) "Principal" means an owner, an executive officer of a corporation, a general partner of a partnership, a sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person. (6) "Purchaser" or "prospective purchaser" means a person who is solicited to become or does become obligated to a telephonic seller. (7) "Salesperson" means any individual employed, appointed, or authorized by a telephonic seller, whether referred to by the telephonic seller as an agent, representative, or independent contractor, who attempts to solicit or solicits a sale on behalf of the telephonic seller. The principals of a seller are themselves salespersons if they solicit sales on behalf of the telephonic seller. (8) "Telephonic seller" or "seller" means a person who, on his or her own behalf or through salespersons, causes a telephone solicitation or attempted telephone solicitation to occur in which either the telephonic seller or the purchaser, or both, are located in Louisiana and which meets the following criteria: (a) A telephone solicitation or attempted telephone solicitation wherein the telephonic seller initiates telephonic contact with a prospective purchaser and represents or implies one or more of the following: (i) That a prospective purchaser who buys one or more items will also receive additional or other items, whether or not of the same type as purchased, without further cost. For purposes of this Chapter, "further cost" does not include actual postage or common carrier delivery charge, if any. (ii) That a prospective purchaser will receive a prize or gift, if the person also encourages the prospective purchaser to do either of the following: (aa) Purchase or rent any goods or services. (bb) Pay any money, including but not limited to delivery or handling charge. (iii) That a prospective purchaser is able to obtain any item or service at a price which the seller states or implies is below the regular price of the item or service offered. This Paragraph shall not apply to retailers who, within the previous twelve months, have sold a majority of their goods or services through in-person sales at retail stores. (iv) That a prospective purchaser who buys office equipment or supplies will, because of some unusual event or imminent price increase, be able to buy these items at prices which are below those that are usually charged or will be charged for the items. (v) That the seller is a person other than the person he or she is. (vi) That the items for sale are manufactured or supplied by a person other than the actual manufacturer or supplier. (vii) That the seller is offering to sell the prospective purchaser any gold, silver, or other metals, including coins, diamonds, rubies, sapphires, or other stones, coal or another mineral, or any interest in oil, gas, or mineral fields, wells, or exploration sites, or any other investment opportunity of any type whatsoever. (b) A solicitation or attempted solicitation which is made by telephone in response to inquiries generated by unrequested notifications sent by the seller to persons who have not previously purchased goods or services from the seller or who have not previously requested credit from the seller, to a prospective purchaser wherein the seller represents or implies to the recipient of the notification that any of the following applies to the recipient: (i) That the recipient has in any manner been specially selected to receive the notification or the offer contained in the notifications. (ii) That the recipient will receive a prize or gift if the recipient calls the seller. (iii) That if the recipient buys one or more items from the seller, the recipient will also receive additional or other items, whether or not of the same type as purchased, without further cost or at a cost which the seller states or implies is less than the regular price of such items. (c) A solicitation or attempted solicitation which is made by telephone in response to inquiries generated by advertisements on behalf of the telephonic seller wherein it is represented or implied that the seller is offering to sell to the prospective purchaser any gold, silver, or other metals, including coins, diamonds, rubies, sapphires, or other stones, coal or another mineral, or any interest in oil, gas, or mineral fields, wells, or exploration sites, or any other investment opportunity of any type whatsoever. B. For purposes of this Chapter, "telephonic seller" or "seller" does not include any of the following: (1) A person offering or selling a security qualified under R.S. 51:701 et seq. (2) A person licensed pursuant to R.S. 37:1430 et seq. when the solicited transaction is governed by that law. (3) A person licensed pursuant to R.S. 37:2150 et seq. when the solicited transaction is governed by that law. (4) A person licensed or certified pursuant to R.S. 22:65, including a person licensed pursuant to Subpart A of Part I of Chapter 5 of Title 22 of the Louisiana Revised Statutes of 1950, R.S. 22:1541 et seq. when the solicited transaction is governed by that law. (5) A person offering or selling a business opportunity governed by R.S. 51:1821 et seq., when the solicited transaction is governed by that law. (6) A person primarily soliciting the sale of a newspaper of general circulation. (7) A person soliciting business from prospective purchasers who have previously purchased from the business enterprise for which the person is calling only if that enterprise is doing business under the same business name. (8) A person soliciting without the intent to complete, and who does not complete the sales presentation during the telephone solicitation but completes the sales presentation at a later face-to-face meeting between the solicitor and the prospective purchaser. However, if a seller, directly following a telephone solicitation, causes an individual whose primary purpose is to go to the prospective purchaser to collect the payment or deliver any items purchased, this exemption does not apply. (9) Any supervised financial institution or parent, subsidiary, or affiliate thereof. As used in this Paragraph, "supervised financial institution" means any commercial bank, trust company, savings and loan association, credit union, industrial loan company, personal property broker, consumer finance lender, commercial finance lender, or insurer, provided that the institution is subject to supervision by an official or agency of this state or of the United States. (10) A person or an affiliate of a person whose business is regulated by the Louisiana Public Service Commission or by a local franchising authority or the Federal Communications Commission under the Cable Television Reregulation Act of 1992. (11) A person soliciting the sale of a commodity pursuant to R.S. 3:552.1 et seq., if the solicitation is not intended to, nor actually results in, a sale which costs the purchaser in excess of one hundred dollars. (12) An issuer or subsidiary of an issuer that has a class of securities which is subject to Section 12 of the Securities Exchange Act of 1934 (15 U.S.C. Sec. 781) and which is either registered or exempt from registration under Paragraph (A), (B), (C), (E), (F), (G), or (H) of Subsection (g)(2) of that Section. (13) A person soliciting a transaction regulated by the Commodity Futures Trading Commission if the person is registered or temporarily licensed for this activity with the Commodity Futures Trading Commission under the Commodity Exchange Act, (7 U.S.C. 1 et seq.) and the registration or license has not expired or been suspended or revoked. (14) A person who sells coins or bullion at a price which is not more than twenty-five percent more than the price at which the seller is concurrently buying the same coins or bullion, if: (a) The seller has had a retail location in Louisiana from which he or she has been selling coins or bullion to the public in person for at least one year. (b) The telephonic solicitations are not the person's primary business and sales made telephonically make up less than twenty percent of the person's total retail sales. (c) The person claiming an exemption pursuant to this Paragraph complies with R.S. 45:823 as applicable, and R.S. 45:824(D). (15) Repealed by Acts 1995, No. 659, §2. (16) A person who has been operating, for at least two years, a retail business establishment in Louisiana under the same name as that used in connection with telemarketing, and both of the following occur on a continuing basis: (a) Either products are displayed and offered for sale or services are offered for sale and provided at the business establishment. (b) A majority of the seller's business involves the buyer obtaining such products or services at the seller's location. (17) Any telephone marketing service company which provides telemarketing sales services under contract to sellers and has been operating continuously for at least five years under the same ownership and control and seventy-five percent of its contracts are performed on behalf of persons exempted from this Chapter by this Section. (18) Any person engaged in the solicitation of accounts relative to commercial debt collections. (19) A person soliciting sales of a magazine of general circulation by its publisher, or by the publisher's agent through a written agreement, only if both of the following conditions are met: (a) The subscriber has the right to review the magazine and cancel the subscription for such magazine for a full refund within seven days. (b) Such right of cancellation and refund is fully disclosed to the subscriber at the time of the sale of the subscription, the delivery of the initial magazine, or the initial request for payment. (20) A book, video, or record club or contractual plan or arrangement under any of the following: (a) Under which the seller provides the consumer with a form which the consumer may use to instruct the seller not to ship the offered merchandise. (b) Which is regulated by the Federal Trade Commission trade regulation rule concerning "use of negative option plans by sellers in commerce". (c) Which provides for the sale of books, recordings, or videos which are not covered under Subparagraph (a) or (b), including continuity plans, subscription arrangements, standing order arrangements, supplements, and series arrangements under which the seller periodically ships merchandise to a consumer who has consented in advance to receive such merchandise on a periodic basis. C. This Chapter does not apply to the solicitation of sales by a catalog seller who periodically issues and delivers catalogs to potential purchasers by mail or by other means. This exception only applies if the catalog includes a written description or illustration and the sales price of each item of merchandise offered for sale, includes at least twenty-four full pages of written material or illustrations, is distributed in more than one state, and has an annual circulation of not less than two hundred fifty thousand customers. Acts 1993, No. 1003, §1; Acts 1995, No. 659, §§1, 2; Acts 1997, No. 332, §1; H.C.R. No. 4, 2002 1st Ex. Sess.; Acts 2008, No. 415, §2, eff. Jan. 1, 2009.