Case 1:10-cv-03551-ILG-CLP Document 516 Filed 05/08/23 Page 1 of 35 PageID #: 30141 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF NEW YORK 

FEDERAL TRADE COMMISSION, 

Plaintiff, 

v. 

CONSUMER HEALTH BENEFITS 

ASSOCIATION, organized as a Missouri 

not-for-profit, also doing business as CHBA, 

NATIONAL ASSOCIATION FOR AMERICANS, 

organized as a Missouri not-for-profit, also doing 

business as NAFA, 

NATIONAL BENEFITS CONSULTANTS, LLC, a 

Florida limited liability company, also doing 

business as NBC, 

NATIONAL BENEFITS SOLUTIONS, LLC, a 

Florida limited liability company, also doing 

business as NBS, 

LOUIS LEO, individually, as a Managing Member 

of NATIONAL BENEFITS CONSULTANTS, 

LCC, as a Managing Member of NATIONAL 

BENEFITS SOLUTIONS, LLC, and as the Vice 

President and Treasurer of CONSUMER HEALTH 

BENEFITS ASSOCIATION, 

RON WERNER, individually, as a Managing 

Member of NATIONAL BENEFITS 

CONSULTANTS, LLC, as a Managing Member of 

NATIONAL BENEFITS SOLUTIONS, LLC, and 

as President and Managing Partner of CONSUMER 

HEALTH BENEFITS ASSOCIATION, 

RITA WERNER, individually, and as Senior Vice 

President and Director of Operations of 

CONSUMER HEALTH BENEFITS 

ASSOCIATION, 

Case No. CV-10-3551 (ILG)(CLP) 

STIPULATED ORDER FOR 

PERMANENT INJUNCTION AND 

MONETARY JUDGMENT AS TO 

THE WERNER DEFENDANTS 
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WENDI TOW, individually, as a Managing 

Member of NATIONAL BENEFITS 

CONSULTANTS, LLC, and as a Managing 

Member of NATIONAL BENEFITS SOLUTIONS, 

LLC, 

JOHN SCHWARTZ, individually, as a Managing 

Member of NATIONAL BENEFITS 

CONSULTANTS, LLC, and as a Managing 

Member of NATIONAL BENEFITS SOLUTIONS, 

LLC, 

GUARANTEE TRUST LIFE INSURANCE 

COMPANY, an Illinois corporation, 

VANTAGE AMERICA SOLUTIONS, INC., an 

Illinois corporation, 

CENTURY SENIOR SERVICES, a Florida 

corporation, 

JEFFREY BURMAN, individually, as President of 

VANTAGE AMERICA SOLUTIONS, INC., and as 

Vice President of GUARANTEE TRUST LIFE 

INSURANCE COMPANY, 

BARBARA TAUBE, individually, and as Vice 

President of GUARANTEE TRUST LIFE 

INSURANCE COMPANY, and 

RICHARD HOLSON, III, individually, and as 

President of GUARANTEE TRUST LIFE 

INSURANCE COMPANY, 

 Defendants. 

Plaintiff, the Federal Trade Commission (“Commission” or “FTC”), filed its Complaint 

for Permanent Injunction and Other Relief, subsequently amended as First Amended Complaint 

for Permanent Injunction and Other Relief (“First Amended Complaint”), pursuant to Sections 
 

 

 

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13(b) and 19 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §§ 53(b) and 57b. 

The Commission and Defendants Ron and Rita Werner (“Werner Defendants”) stipulate to the 

entry of this Stipulated Order for Permanent Injunction and Monetary Judgment as to the Werner 

Defendants (“Order”) to resolve all matters in dispute in this action between them. 

THEREFORE, IT IS ORDERED as follows: 

FINDINGS 

1. This Court has jurisdiction over this matter. 

2. The First Amended Complaint charges that the Werner Defendants participated in 

deceptive acts or practices in violation of Section 5 of the FTC Act, 15 U.S.C. § 45, and the 

FTC’s Telemarketing Sales Rule (“TSR”), 16 C.F.R. Part 310, in connection with the marketing 

and sale of Healthcare-Related Benefits or Discount Programs. 

3. The Werner Defendants neither admit nor deny any of the allegations in the First 

Amended Complaint, except as specifically stated in this Order. Only for purposes of this action, 

the Werner Defendants admit the facts necessary to establish jurisdiction. 

4. The Werner Defendants waive any claim that they may have under the Equal Access to 

Justice Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this 

Order, and agree to bear their own costs and attorney fees. 

5. The Werner Defendants and the Commission waive all rights to appeal or otherwise 

challenge or contest the validity of this Order. 

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DEFINITIONS 

For the purpose of this Order, the following definitions apply: 

A. “Clear(ly) and Conspicuous(ly)” means that a required disclosure is difficult to miss 

(i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of the 

following ways: 

1. In any communication that is solely visual or solely audible, the disclosure must be 

made through the same means through which the communication is presented. In any 

communication made through both visual and audible means, such as a television 

advertisement, the disclosure must be presented simultaneously in both the visual and 

audible portions of the communication even if the representation requiring the disclosure 

is made in only one means. 

2. A visual disclosure, by its size, contrast, location, the length of time it appears, and 

other characteristics, must stand out from any accompanying text or other visual elements 

so that it is easily noticed, read, and understood. 

3. An audible disclosure, including by telephone or streaming video, must be 

delivered in a volume, speed, and cadence sufficient for ordinary consumers to easily hear 

and understand it. 

4. In any communication using an interactive electronic medium, such as the Internet 

or software, the disclosure must be unavoidable. 

5. The disclosure must use diction and syntax understandable to ordinary consumers 

and must appear in each language in which the representation that requires the disclosure 

appears. 

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6. The disclosure must comply with these requirements in each medium through 

which it is received, including all electronic devices and face-to-face communications. 

7. The disclosure must not be contradicted or mitigated by, or inconsistent with, 

anything else in the communication. 

8. When the representation or sales practice targets a specific audience, such as 

children, the elderly, or the terminally ill, “ordinary consumers” includes reasonable 

members of that group. 

B. “Defendants” means Consumer Health Benefits Association; National Association for 

Americans; National Benefits Consultants, LLC; National Benefits Solutions, LLC; Guarantee 

Trust Life Insurance Company; Vantage America Solutions, Inc.; Century Senior Services; their 

successors and assigns; Louis Leo; Ron Werner; Rita Werner; Wendi Tow; John Schwartz; 

Jeffrey Burman; Barbara Taube; and Richard Holson, III, individually, collectively, or in any 

combination. 

C. “Escrow Agent” means Steven E. Ostrow, the Court-appointed successor escrow agent in 

this case. 

D. “Healthcare-Related Benefits or Discount Programs” includes any program, 

membership, card, product, or other good(s) or service(s), which is not insurance, that purports to 

offer discounts, savings, services, or benefits on healthcare, or access to such discounts, savings, 

services, or benefits. This shall not include any non-insurance discounts, savings, services, or 

benefits that are in addition to, and sold in combination with, any insurance products or services 

filed with and/or approved by any state department of insurance or federal regulatory body. 

E. “Insurance” means any good or service that (a) has the effect of transferring or spreading 

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risk; (b) is an integral part of the policy relationship between the insurer and the insured; and 

(c) is limited to entities within the insurance industry. 

F. “Seller” means any person who, in connection with a Telemarketing transaction, provides, 

offers to provide, or arranges for others to provide goods or services to the customer in exchange 

for consideration, whether or not such person is under the jurisdiction of the Commission. 

G. “Telemarketer” means any person who, in connection with Telemarketing, initiates or 

receives telephone calls to or from a customer or donor, whether or not such person is under the 

jurisdiction of the Commission. 

H. “Telemarketing” means any plan, program, or campaign which is conducted to induce 

the purchase of goods or services or a charitable contribution by use of one or more telephones 

and which involves more than one interstate telephone call. 

I. “Werner Defendants” means Ron Werner and Rita Werner. 

ORDER 

I. BAN ON SELLING HEALTHCARE-RELATED 

BENEFITS OR DISCOUNT PROGRAMS 

IT IS ORDERED that the Werner Defendants are permanently restrained and enjoined 

from advertising, marketing, promoting, offering for sale, or selling, or assisting in the 

advertising, marketing, promoting, offering for sale, or selling, of any Healthcare-Related 

Benefits or Discount Programs. 

II. PROHIBITION AGAINST VIOLATING THE TSR 

With respect to activities that do not constitute the business of Insurance regulated by state 

law, IT IS FURTHER ORDERED that the Werner Defendants, their officers, agents, and 

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employees, and all other persons in active concert or participation with any of them, who receive 

actual notice of this Order, whether acting directly or indirectly, are permanently restrained and 

enjoined from violating any provision of the Telemarketing Sales Rule, 16 C.F.R. Part 310, 

attached as Attachment A, including: 

A. Section 310.3(a)(1)(iii) of the TSR, 16 C.F.R. § 310.3(a)(1)(iii), by failing to disclose 

truthfully, in a Clear and Conspicuous manner, before a customer consents to pay for goods or 

services offered in connection with Telemarketing: (1) if the Seller has a policy of not making 

refunds, cancellations, exchanges, or repurchases, a statement informing the customer that this is 

the Seller’s policy; or (2) if the Seller or Telemarketer makes a representation about a refund, 

cancellation, exchange, or repurchase policy, a statement of all material terms and conditions of 

such policy; 

B. Section 310.3(a)(2) of the TSR, 16 C.F.R. § 310.3(a)(2), by misrepresenting, directly or by 

implication, in the sale of goods or services any of the following material information: (1) the 

total costs to purchase, receive, or use, and the quantity of, any goods or services that are the 

subject of a sales offer; (2) any material restriction, limitation, or condition to purchase, receive, 

or use goods or services that are the subject of a sales offer; (3) any material aspect of the 

performance, efficacy, nature, or central characteristics of goods or services that are the subject of 

a sales offer; or (4) any material aspect of the nature or terms of the Seller’s refund, cancellation, 

exchange or repurchase policies; and 

C. Section 310.4(d) of the TSR, 16 C.F.R. § 310.4(d), by failing to disclose truthfully, 

promptly, and in a Clear and Conspicuous manner to the person receiving a call in connection 

with Telemarketing: (1) the identity of the Seller; (2) that the purpose of the call is to sell goods or 

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services; or (3) the nature of the goods or services. 

III. PROHIBITION AGAINST MISREPRESENTATIONS 

IT IS FURTHER ORDERED that the Werner Defendants, their officers, agents, 

employees, and attorneys, and all other persons in active concert or participation with any of 

them, who receive actual notice of this Order, whether acting directly or indirectly, in connection 

with promoting or offering for sale any good or service (other than Healthcare-Related Benefits or 

Discount Programs) are permanently restrained and enjoined from misrepresenting or assisting 

others in misrepresenting, expressly or by implication: 

A. That consumers will save a substantial sum of money; 

B. Any material aspect of the nature or terms of the Seller’s refund, cancellation, exchange, 

or repurchase policies; and 

C. Any other fact material to consumers concerning any good or service, such as: the total 

costs; any material restrictions, limitations, or conditions; or any material aspect of its 

performance, efficacy, nature, or central characteristics. 

IV. MONETARY JUDGMENT 

IT IS FURTHER ORDERED that: 

A. Judgment in the amount of 1.1 Million Dollars ($1,100,000.00) is entered in favor of the 

Commission against the Werner Defendants as monetary relief pursuant to Section 19 of the FTC 

Act, 15 U.S.C. § 57b(b). 

B. In full satisfaction of the judgment against the Werner Defendants: 

1. The Werner Defendants shall relinquish any and all right, title, and interest they 

may possess in any funds held by the Escrow Agent in favor of the FTC, including funds 

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held on behalf: of any Defendant; Tele-Health Inc.; Instant Health in America LLC; 

Louron Insurance Group, Inc.; and Werner Financial Services. 

2. The Escrow Agent shall, within 10 days of entry of this Order by electronic fund 

transfer in accordance with instructions previously provided by a representative of the 

Commission, transfer to the Commission: 

a. Thirteen thousand five hundred ninety-four dollars and fifty-nine cents 

($13,594.59) from the account held by the Escrow Agent in the name of TeleHealth Inc.; 

b. One thousand three hundred eighty dollars and thirty-one cents ($1,380.31) 

from the account held by the Escrow Agent in the name of Instant Health in 

America LLC; 

c. Eight hundred four dollars and twenty-six cents ($804.26) from the account 

held by the Escrow Agent in the name of Louron Insurance Group, Inc.; and 

d. Sixteen thousand eighty dollars and eighty-four cents ($16,080.84) from 

the account held by the Escrow Agent in the name of Werner Financial Services 

Inc.; 

e. Two hundred thirty-nine thousand five hundred fifty dollars and twentyeight cents ($239,550.28) from the account held by the Escrow Agent in the name 

of Ronald Werner; 

f. Two hundred thirty-nine thousand five hundred fifty dollars and twentyeight cents ($239,550.28) from the account held by the Escrow Agent in the name 

of Rita Werner; and 

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g. Ninety thousand six hundred twenty-nine dollars and seventy-six cents 

($90,629.76) from the account held by the Escrow Agent in the name of Ronald 

and Rita Werner. 

3. Synovus Bank shall, within 10 days of entry of this Order by electronic fund 

transfer in accordance with instructions previously provided by a representative of 

the Commission, transfer to the Commission two hundred sixty thousand nine 

hundred forty seven dollars and thirty four cents ($260,947.34) from the account 

ending in x0631 in the name of “Ronald K Werner Rita B Werner.” 

4. Valley National Bank shall, within 10 days of entry of this Order by electronic 

fund transfer in accordance with instructions previously provided by a 

representative of the Commission, transfer to the Commission two hundred thirty 

seven thousand four hundred sixty two dollars and thirty four cents ($237,462.34) 

from the Certificate of Deposit account ending in x1392 in the name of “Ronald K 

Werner or Rita B Werner.” 

5. The asset freeze in the Stipulated Order of Preliminary Injunction as to Defendants 

Ron Werner and Rita Werner [Dkt. No. 51] is modified to permit the payments and 

transfers of a total of $1,100,000, and upon completion of all of these transfers, the 

asset freeze is dissolved as to the Werner Defendants. 

C. The Werner Defendants relinquish dominion and all legal and equitable right, title, and 

interest in all assets transferred pursuant to this Order in favor of the FTC and may not seek the 

return of any assets. 

D. The facts alleged in the First Amended Complaint will be taken as true, without further 

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proof, in any subsequent civil litigation by or on behalf of the Commission, including in a 

proceeding to enforce its rights to any payment or monetary judgment pursuant to this Order, such 

as a nondischargeability complaint in any bankruptcy case. 

E. The facts alleged in the First Amended Complaint establish all elements necessary to 

sustain an action by the Commission pursuant to Section 523(a)(2)(A) of the Bankruptcy Code, 

11 U.S.C. § 523(a)(2)(A), and this Order will have collateral estoppel effect for such purposes. 

F. The Werner Defendants acknowledge that their Social Security Numbers, which the 

Werner Defendants previously submitted to the Commission, may be used for collecting and 

reporting on any delinquent amount arising out of this Order, in accordance with 31 U.S.C. 

§7701. 

G. All money paid to the Commission pursuant to this Order may be deposited into a fund 

administered by the Commission or its designee to be used for consumer redress and any 

attendant expenses for the administration of any redress fund. If a representative of the 

Commission decides that direct redress to consumers is wholly or partially impracticable or 

money remains after such redress is completed, the Commission may apply any remaining money 

for such related relief (including consumer information remedies) as it determines to be 

reasonably related to the Werner Defendants’ practices alleged in the First Amended Complaint. 

The Werner Defendants have no right to challenge any actions the Commission or its 

representatives may take pursuant to this Subsection. 

H. If the Werner Defendants fail to pay fully the amount due at the time specified, the Werner 

Defendants must cooperate fully with the Commission and their representatives in all attempts to 

collect the judgment. In such an event, the Werner Defendants agree to provide federal and state 

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tax returns for the preceding 2 years, and to complete a new financial disclosure form fully and 

accurately within 10 business days of receiving a request from the Commission. The Werner 

Defendants further authorize the Commission to verify all information provided on their financial 

disclosure form with all appropriate third parties, including financial institutions. 

I. The Commission may request any tax-related information, including amended tax returns 

and any other filings, that the Werner Defendants have the authority to release. Within 14 days of 

receipt of a written request from a representative of the Commission, the Werner Defendants must 

take all necessary steps (such as filing a completed IRS Form 4506 or 8821) to cause the Internal 

Revenue Service or other tax authority to provide the information directly to the Commission. 

V. CUSTOMER INFORMATION 

IT IS FURTHER ORDERED that the Werner Defendants, their officers, agents, 

employees, and attorneys, and all other persons in active concert or participation with any of 

them, who receive actual notice of this Order, whether acting directly or indirectly, are 

permanently restrained and enjoined from directly or indirectly: 

A. disclosing, using, or benefitting from customer information, including the name, address, 

telephone number, email address, social security number, other identifying information, sensitive 

health information, or any data that enables access to a customer’s account (including a credit 

card, bank account, or other financial account), that any Defendant obtained prior to entry of this 

Order in connection with the sale of Healthcare-Related Benefits or Discount Programs; and 

B. failing to destroy such customer information in all forms in their possession, custody, or 

control within 30 days after entry of a stipulated final order against the last remaining Defendant 

or receipt of written direction to do so from a representative of the Commission. 

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Provided, however, that customer information need not be disposed of, and may be disclosed, to 

the extent requested by a government agency or required by law, regulation, or court order. 

VI. ORDER ACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that the Werner Defendants obtain acknowledgments of 

receipt of this Order: 

A. The Werner Defendants, within 7 days of entry of this Order, must submit to the 

Commission an acknowledgment of receipt of this Order sworn under penalty of perjury. 

B. For 3 years after entry of this Order, each Werner Defendant for any business that 

such Werner Defendant, individually or collectively with any other Defendants, is the majority 

owner or controls directly or indirectly, must deliver a copy of this Order to: (1) all principals, 

officers, directors, and LLC managers and members; (2) all employees, agents, and 

representatives with managerial responsibilities for conduct related to the subject matter of the 

Order and all agents and representatives who participate in conduct related to the subject matter of 

the Order; and (3) any business entity resulting from any change in structure as set forth in the 

Section titled Compliance Reporting. Delivery must occur within 7 days of entry of this Order for 

current personnel. For all others, delivery must occur before they assume their responsibilities. 

C. From each individual or entity to which one of the Werner Defendants delivered a copy of 

this Order, that Werner Defendant must obtain, within 30 days, a signed and dated 

acknowledgment of receipt of this Order. 

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VII. COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that the Werner Defendants make timely submissions to the 

Commission: 

A. One year after entry of this Order, each Werner Defendant must submit a compliance 

report, sworn under penalty of perjury, to: 

1. identify all telephone numbers and all physical, postal, email and Internet 

addresses, including all residences; 

2. identify all business activities, including any business for which such Werner 

Defendant performs services whether as an employee or otherwise and any entity in which 

such Werner Defendant has any ownership interest; 

3. describe in detail such Werner Defendant’s involvement in each such business, 

including title, role, responsibilities, participation, authority, control, and any ownership; 

4. identify the primary physical, postal, and email address and telephone number, as 

designated points of contact, which representatives of the Commission may use to 

communicate with such Werner Defendant; 

5. identify all of such Werner Defendant’s businesses by all of their names, telephone 

numbers, and physical, postal, email, and Internet addresses; 

6. describe the activities of each business, including the goods and services offered, 

the means of advertising, marketing, and sales, and the involvement of any other 

Defendant (which such Werner Defendant must describe if he or she knows or should 

know due to his or her own involvement); 

7. describe in detail whether and how such Werner Defendant is in compliance with 

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each Section of this Order; and 

8. provide a copy of each Order Acknowledgment obtained pursuant to this Order, 

unless previously submitted to the Commission. 

B. For 5 years after entry of this Order, each Werner Defendant must submit a compliance 

notice, sworn under penalty of perjury, within 14 days of any change in the following: 

1. name, including aliases or fictitious name, or residence address; 

2. title or role in any business activity, including any business for which such Werner 

Defendant performs services whether as an employee or otherwise and any entity in which 

such Werner Defendant has any ownership interest, and identify the name, physical 

address, and any Internet address of the business or entity; 

3. any designated point of contact; or 

4. the structure of any entity that such Werner Defendant has any ownership interest 

in or controls directly or indirectly that may affect compliance obligations arising under 

this Order, including: creation, merger, sale, or dissolution of the entity or any subsidiary, 

parent, or affiliate that engages in any acts or practices subject to this Order. 

C. Each Werner Defendant must submit to the Commission notice of the filing of any 

bankruptcy petition, insolvency proceeding, or similar proceeding by or against such Werner 

Defendant within 14 days of its filing. 

D. Any submission to the Commission required by this Order to be sworn under penalty of 

perjury must be true and accurate and comply with 28 U.S.C. § 1746, such as by concluding: “I 

declare under penalty of perjury under the laws of the United States of America that the foregoing 

is true and correct. Executed on: _____” and supplying the date, signatory’s full name, title (if 

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applicable), and signature. 

E. Unless otherwise directed by a Commission representative in writing, all submissions to 

the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or sent by overnight 

courier (not the U.S. Postal Service) to: Associate Director for Enforcement, Bureau of 

Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, Washington, 

DC 20580. The subject line must begin: FTC v. Werner, X100042. 

VIII. RECORDKEEPING 

IT IS FURTHER ORDERED that the Werner Defendants must create certain records for 5 

years after entry of the Order, and retain each such record for 5 years. Specifically, each Werner 

Defendant for any business that such Werner Defendant, individually or collectively with any 

other Defendants, is a majority owner or controls directly or indirectly, must create and retain the 

following records: 

A. accounting records showing the revenues from all goods or services sold; 

B. personnel records showing, for each person providing services, whether as an employee or 

otherwise, that person’s: name; addresses; telephone numbers; job title or position; dates of 

service; and (if applicable) the reason for termination; 

C. records of all consumer complaints and refund requests, whether received directly or 

indirectly, such as through a third party, and any response; 

D. all records necessary to demonstrate full compliance with each provision of this Order, 

including all submissions to the Commission; and 

E. a copy of each unique advertisement or other marketing material. 

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IX. COMPLIANCE MONITORING 

IT IS FURTHER ORDERED that, for the purpose of monitoring the Werner Defendants’ 

compliance with this Order, including any failure to transfer any assets as required by this Order: 

A. Within 30 days of receipt of a written request from a representative of the Commission, 

each Werner Defendant must: submit additional compliance reports or other requested 

information, which must be sworn under penalty of perjury; appear for depositions; and produce 

documents for inspection and copying. The Commission is also authorized to obtain discovery, 

without further leave of court, using any of the procedures prescribed by Federal Rules of Civil 

Procedure 29, 30 (including telephonic depositions), 31, 33, 34, 36, 45, and 69, provided that the 

Werner Defendants, after attempting to resolve a dispute without court action and for good cause 

shown, may file a motion with this Court seeking an order for one or more of the protections set 

forth in Rule 26(c). 

B. For matters concerning this Order, the Commission is authorized to communicate directly 

with the Werner Defendants. The Werner Defendants must permit representatives of the 

Commission to interview any employee or other person affiliated with any Werner Defendant 

who has agreed to such an interview. The person interviewed may have counsel present. 

C. The Commission may use all other lawful means, including posing, through its 

representatives as consumers, suppliers, or other individuals or entities, to the Werner Defendants 

or any individual or entity affiliated with the Werner Defendants, without the necessity of 

identification or prior notice. Nothing in this Order limits the Commission’s lawful use of 

compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b-1. 

D. Upon written request from a representative of the Commission, any consumer reporting 

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agency must furnish consumer reports concerning the Werner Defendants, pursuant to Section 

604(1) of the Fair Credit Reporting.Act, 1 SU.S.C. §168lb(a)(l). 

X. RETENTION OF JURISDICTION 

IT IS FURTIIER ORDERED that this Court retains jurisdiction ofthis matter for purposes 

ofconstruction, modification, and enforcement of this Order. 

SO ORDERED this 4th day of__M_ a- y______, 2023. 

Isl I. Leo Glasser, U.S. District Judge 

I. LEO GLASSER 

UNITED STA TES DISTRICT JUDGE 

SO STIPULATED AND AGREED: 

FOR PLAJNTJFF: 

FEDERAL TRADE COMMISSION 

a~ 

Karen Dahlberg O on II, Attorney 

Federal Trade Commission 

Northeast Region 

1 Bowling Green, Suite 318 

New York, NY l 0004 

212-607-2821 

212-607-2822 (fax) 

koconnell@ftc.gov 

. 

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Case 1:lQ-cv-03551-ILG-CLP Document 516 Filed 05/08/23 Page 19 of 35 PagelD #: 30159 

FOR THE WERNER DEFENDANTS: 

Schlam Stone & Dolan LLP 

Date: 'Hr/202.3 

26Broadway 

New York, NY l 0004 

Main: 212 344-5400 

Direct: 212 612-0688 

ewolstein@schlamstone.com 

COUNSEL FOR THE WERNER DEFENDANTS 

THE WERNER DEFENDANTS: 

~~d~ RON WERNER, lNDIVIDUALL Y 

Date: 

RITA WERNER, INDIVIDUALLY 

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ATTACHMENT A
vA~~~[ ~ cv-03551-ILG-CLP Document 516 Filed 05/08/23 Page 21 of 35 PagelD #: 30161 

GP°? 

Federal Trade Commission §310.2 

APPENDIX A TO PART 309-F!GURES FOR PART 309 

MINIMUM 

90°/o 

METHANE 

Fig u re l 

ELECTRICITY 

9.6 kW 

240 vac/40 amps 

CONDUCTIVE 

Figtire 3 

HYDROGEN 

MINIMUM 

98°/o 

HYDROGEN 

Figure 2 

(60 FR 26955, May 19, 1995, as amended at 69 FR 55339, Sept. 14, 2004; 78 FR 23835, Apr. 23, 2013] 

PART 310-TELEMARKETING SALES 

RULE 

Sec. 

310.1 Scope of regulations in this part. 

310.2 Definitions. 

310.3 Deceptive telemarketing acts or practices. 

310.4 Abusive telemarketing acts or prac- tices. 

310.5 Recordkeeping requirements. 

310.6 Exemptions. 

310.7 Actions by states and private persons. 

310.8 Fee for access to the National Do Not 

Call Registry. 

310.9 Severabilit y. 

AUTHORITY: 15 U.S.C. 6101-0108. 

SOURCE: 75 FR 48516, Aug. 10, 2010, unless otherwise noted. 

§310.1 Scope of regulations in this 

part. 

This part implements the Telemarketing and Consumer Fraud and 

Abuse Prevention Act, 15 U.S.C. 6101- 6108, as amended. 

§ 310.2 Definitions. 

(a) Acquirer means a business organi­ zation, financial institution, or an 

agent of a business organization or financial institution that has authority 

from an organization that operates or 

licenses a credit card system to author­ ize merchants to accept, transmit, or 

process payment by credit card 

through the credit card system for 

money, goods or services, or anything 

else of value. 

385 
§310.2 16 CFR Ch. I (1-1-21 Edition) 

(b) Attorney General means the chief that can be used to add funds to a genlegal officer of a state. eral-use prepaid card, as defined in 

(c) Billing information means any data Regulation E, 12 CFR 1005.2, or an ac­ that enables any person to access a count with a payment intermediary. customer's or donor's account, such as For purposes of this definition, a cash a credit card, checking, savings, share reload mechanism is not itself a gen­ or similar account, utility bill, mort­ eral-use prepaid debit card or a swipe 

gage loan account, or debit card. reload process or similar method in 

(d) Caller identification service means a which funds are added directly onto a service that allows a telephone sub­ person's own general-use prepaid card 

scriber to have the telephone number, or account with a payment interand, where available, name of the call­ mediary. ing party transmitted contempora­ (h) Charitable contribution means any neously with the telephone call, and donation or gift of money or any other displayed on a device in or connected thing of value. 

to the subscriber's telephone. (i) Commission means the Federal (e) Cardholder means a person to Trade Commission. whom a credit card is issued or who is 

authorized to use a credit card on be­ (j) Credit means the right granted by a creditor to a debtor to defer payment half of or in addition to the person to 

whom of debt or to incur debt and defer its the credit card is issued. 

payment. (f) Cash-to-cash money transfer means the electronic (as defined in section (k) Credit card means any card, plate, 

106(2) of the Electronic Signatures in coupon book, or other credit device exGlobal and National Commerce Act (15 isting for the purpose of obtaining 

U.S.C. 7006(2)) transfer of the value of money, property, labor, or services on 

cash received from one person to an­ credit. 

other person in a different location (1) Credit card sales draft means any 

that is sent by a money transfer pro­ record or evidence of a credit card 

vider and received in the form of cash. transaction. 

For purposes of this definition, money (m) Credit card system means any 

transfer provider means any person or method or procedure used to process financial institution that provides credit card transactions involving credcash-to-cash money transfers for a per­ it cards issued or licensed by the oper­ son in the normal course of its busi­ a tor of that system. 

ness, whether or not the person holds (n) Customer means any person who is an account with such person or finan­ or may be required to pay for goods or cial institution. The term cash-to-cash services offered through telemoney transfer includes a remittance marketing. transfer, as defined in section 919(g)(2) ( o) Debt relief service means any pro­ of the Electronic Fund Transfer Act gram or service represented, directly or ("EFTA"), 15 U.S.C. 1693a, that is a by implication, to renegotiate, settle, cash-to-cash transaction; however it or in any way alter the terms of pay­ does not include any transaction that ment or other terms of the debt be­ is: tween a person and one or more unse­ (1) An electronic fund transfer as de­ cured creditors or debt collectors, in­ fined in section 903 of the EFTA; cluding, but not limited to, a reduction (2) Covered by Regulation E, 12 CFR in the balance, interest rate, or fees 1005.20, pertaining to gift cards; or owed by a person to an unsecured cred­ (3) Subject to the Truth in Lending itor or debt collector. Act, 15 U.S.C. 1601 et seq. (p) any person solicited (g) Cash Donor means reload mechanism is a device, 

authorization code, personal identifica­ to make a charitable contribution. 

tion number, or other security measure (q) Established business relationship 

that makes it possible for a person to means a relationship between a seller 

convert cash into an electronic (as de­ and a consumer based on: 

fined in section 106(2) of the Electronic (1) the consumer's purchase, rental, 

Signatures in Global and National or lease of the seller's goods or services 

Commerce Act (15 U.S.C. 7006(2)) form or a financial transaction between the 

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Federal Trade Commission §310.2 

consumer and seller, within the eight­ (z) ?reacquired account information 

een (18) months immediately preceding means any information that enables a the date of a telemarketing call; or seller or telemarketer to cause a (2) the consumer's inquiry or applica­ charge to be placed against a cus­ tion regarding a product or service of­ tomer's or donor's account without obfered by the seller, within the three (3) taining the account number directly 

months immediately preceding the from the customer or donor during the 

date of a telemarketing call. telemarketing transaction pursuant to 

(r) Free-to-pay conversion means, in an which the account will be charged. 

offer or agreement to sell or provide (aa) Prize means anything offered, or any goods or services, a provision purportedly offered, and given, or purunder which a customer receives a portedly given, to a person by chance. 

product or service for free for an initial For purposes of this definition, chance 

period and will incur an obligation to exists if a person is guaranteed to re­ pay for the product or service if he or ceive an item and, at the time of the 

she does not take affirmative action to offer or purported offer, the telecancel before the end of that period. marketer does not identify the specific 

(s) Investment opportunity means any­ item that the person will receive. 

thing, tangible or intangible, that is of­ (bb) Prize promotion means: fered, offered for sale, sold, or traded (1) A sweepstakes or other game of 

based wholly or in part on representa­ chance;or 

tions, either express or implied, about (2) An oral or written express or impast, present, or future income, profit, plied representation that a person has or appreciation. won, has been selected to receive, or (t) Material means likely to affect a may be eligible to receive a prize or person's choice of, or conduct regard­ purported prize. 

ing, goods or services or a charitable (cc) Remotely created payment order 

contribution. means any payment instruction or (u) Merchant means a person who is order drawn on a person's account that 

authorized under a written contract is created by the payee or the payee's 

with an acquirer to honor or accept agent and deposited into or cleared 

credit cards, or to transmit or process through the check clearing system. 

for payment credit card payments, for The term includes, without limitation, 

the purchase of goods or services or a a "remotely created check," as defined 

charitable contribution. in Regulation CC, Availability of 

(v) Merchant agreement means a writ­ Funds and Collection of Checks, 12 CFR 

ten contract between a merchant and 229.2(fff), but does not include a pay­ an acquirer to honor or accept credit ment order cleared through an Autocards, or to transmit or process for mated Clearinghouse (ACH) Network or payment credit card payments, for the subject to the Truth in Lending Act, 15 

purchase of goods or services or a char­ U.S.C. 1601 et seq., and Regulation Z, 12 

itable contribution. CFR part 1026. 

(w) Negative option feature means, in (dd) Seller means any person who, in an offer or agreement to sell or provide connection with a telemarketing transany goods or services, a provision action, provides, offers to provide, or under which the customer's silence or arranges for others to provide goods or failure to take an affirmative action to services to the customer in exchange 

reject goods or services or to cancel the for consideration. 

agreement is interpreted by the seller (ee) State means any state of the as acceptance of the offer. United States, the District of Colum­

(x) Outbound telephone call means a bia, Puerto Rico, the Northern Mariana 

telephone call initiated by a tele­ Islands, and any territory or possession 

marketer to induce the purchase of of the United States. 

goods or services or to solicit a chari­ (ff) Telemarketer means any person 

table contribution. who, in connection with telemarketing, 

(y) Person means any individual, initiates or receives telephone calls to 

group, unincorporated association, lim­ or from a customer or donor. 

ited or general partnership, corpora­ (gg) Telemarketing means a plan, protion, or other business entity. gram, or campaign which is conducted 

387 

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§310.3 16 CFR Ch. I (1-1-21 Edition) 

to induce the purchase of goods or serv­ (1) Before a customer consents to 

ices or a charitable contribution, by pay 659 for goods or services offered, use of one or more telephones and failing to disclose truthfully, in a clear 

which involves more than one inter­ and conspicuous manner, the following 

state telephone call. The term does not material information: 

include the solicitation of sales (i) The total costs to purchase, re­ through the mailing of a catalog ceive, or use, and the quantity of, any which: contains a written description goods or services that are the subject or illustration of the goods or services of the sales offer; 660 offered for sale; includes the business (ii) All material restrictions, limita­ address of the seller; includes multiple tions, or conditions to purchase, re­ pages of written material or illustra­ ceive, or use the goods or services that tions; and has been issued not less fre­ are the subject of the sales offer; quently than once a year, when the 

(iii) If the seller has a policy of not person making the solicitation does making refunds, cancellations, ex­ not solicit customers by telephone but changes, or repurchases, a statement only receives calls initiated by cus­ tomers in response to the catalog and informing the customer that this is the 

during those calls takes orders only seller's policy; or, if the seller or telewithout further solicitation. For pur­ marketer makes a representation 

poses of the previous sentence, the about a refund, cancellation, exchange, 

term "further solicitation" does not or repurchase policy, a statement of all 

include providing the customer with material terms and conditions of such 

information about, or attempting to policy; 

sell, any other item included in the (iv) In any prize promotion, the odds same catalog which prompted the cus­ of being able to receive the prize, and, 

tomer's call or in a substantially simi­ if the odds are not calculable in adlar catalog. vance, the factors used in calculating (hh) Upselling means soliciting the the odds; that no purchase or payment purchase of goods or services following is required to win a prize or to partici­ an initial transaction during a single pate in a prize promotion and that any telephone call. The upsell is a separate purchase or payment will not increase 

telemarketing transaction, not a con­ the person's chances of winning; and 

tinuation of the initial transaction. An the no-purchase/no-payment method of "external upsell" is a solicitation participating in the prize promotion made by or on behalf of a seller dif­ with either instructions on how to par­ ferent from the seller in the initial ticipate or an address or local or toll­ transaction, regardless of whether the free telephone number to which cus­ initial transaction and the subsequent tomers may write or call for informa­ solicitation are made by the same tele­ tion on how to participate; marketer. An "internal upsell" is a so­ licitation made by or on behalf of the same seller as in the initial trans­ 659 When a seller or telemarketer uses, or 

action, regardless of whether the ini­ directs a customer to use, a courier to transtial transaction and subsequent solici­ port payment, the seller or telemarketer 

must make the disclosures required by tation are made by the same tele­ §310.3(a)(l) before sending a courier to pick marketer. up payment or authorization for payment, or directing a customer to have a courier pick [75 FR 48516, Aug. 10, 2010, as amended at 80 

up payment or authorization for payment. In FR 77557, Dec. 14, 2015] the case of debt relief services, the seller or 

telemarketer must make the disclosures re­ § 310.3 Deceptive telemarketing acts or quired by §310.3(a)(l) before the consumer en­ practices. rolls in an offered program. 

(a) Prohibited deceptive telemarketing 660 For offers of consumer credit products 

acts or practices. It is a deceptive tele­ subject to the Truth in Lending Act, 15 

marketing act or practice and a viola­ U.S.C. 1601 et seq., and Regulation Z, 12 CFR 

226, compliance with the disclosure require­ tion of this Rule for any seller or tele­ ments under the Truth in Lending Act and marketer to engage in the following Regulation Z shall constitute compliance conduct: with § 310.3(a)(l)(i) of this Rule. 

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Federal Trade Commission §310.3 

(v) All material costs or conditions the account, the customer may withto receive or redeem a prize that is the draw from the debt relief service at any 

subject of the prize promotion; time without penalty, and, if the cus­ (vi) In the sale of any goods or serv­ tomer withdraws, the customer must 

ices represented to protect, insure, or receive all funds in the account, other 

otherwise limit a customer's liability than funds earned by the debt relief 

in the event of unauthorized use of the service in compliance with 

customer's credit card, the limits on a § 310.4(a)(5)(i)(A) through (C). cardholder's liability for unauthorized (2) Misrepresenting, directly or by use of a credit card pursuant to 15 

u.s.c. implication, in the sale of goods or 1643; services any of the following material (vii) If the offer includes a negative information: option feature, all material terms and (i) The total costs to purchase, re­ conditions of the negative option fea­ ceive, or use, and the quantity of, any ture, including, but not limited to, the goods or services that are the subject fact that the customer's account will of a sales offer; be charged unless the customer takes Any material restriction, limita­ an affirmative action to avoid the (ii) 

tion, or condition to purchase, receive, charge(s), the date(s) the charge(s) will or use goods or services that are the be submitted for payment, and the spe­ subject of a sales offer; cific steps the customer must take to 

avoid the charge(s); and (iii) Any material aspect of the per­

(viii) In the sale of any debt relief formance, efficacy, nature, or central 

service: characteristics of goods or services 

(A) the amount of time necessary to that are the subject of a sales offer; 

achieve the represented results, and to (iv) Any material aspect of the na­ the extent that the service may include ture or terms of the seller's refund, a settlement offer to any of the cus­ cancellation, exchange, or repurchase 

tomer's creditors or debt collectors, policies; 

the time by which the debt relief serv­ (v) Any material aspect of a prize ice provider will make a bona fide set­ promotion including, but not limited 

tlement offer to each of them; to, the odds of being able to receive a (B) to the extent that the service prize, the nature or value of a prize, or may include a settlement offer to any that a purchase or payment is required of the customer's creditors or debt col­ to win a prize or to participate in a lectors, the amount of money or the prize promotion; percentage of each outstanding debt (vi) Any material aspect of an invest­ that the customer must accumulate be­ ment opportunity including, but not fore the debt relief service provider limited to, risk, liquidity, earnings po­ will make a bona fide settlement offer tential, or profitability; to each of them; (vii) A seller's or telemarketer's af­ (C) to the extent that any aspect of filiation with, or endorsement or spon­ the debt relief service relies upon or re­ sorship by, any person or government sults in the customer's failure to make entity; timely payments to creditors or debt (viii) That any customer needs of­ collectors, that the use of the debt re­ fered goods or services to provide pro­ lief service will likely adversely affect tections a customer already has pursu­ the customer's creditworthiness, may ant to 15 U.S.C. 1643; result in the customer being subject to 

collections or sued by creditors or debt (ix) Any material aspect of a negacollectors, and may increase the tive option feature including, but not 

amount of money the customer owes limited to, the fact that the customer's 

due to the accrual of fees and interest; account will be charged unless the cusand tomer takes an affirmative action to 

(D) to the extent that the debt relief avoid the charge(s), the date(s) the 

service requests or requires the cus­ charge(s) will be submitted for paytomer to place funds in an account at ment, and the specific steps the cus­ an insured financial institution, that tomer must take to avoid the 

the customer owns the funds held in charge(s); or 

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§310.3 16 CFR Ch. I (1-1-21 Edition) 

(x) Any material aspect of any debt donor's authorization of payment for 

relief service, including, but not lim­ the goods or services or charitable con­ ited to, the amount of money or the tribution that are the subject of the 

percentage of the debt amount that a telemarketing transaction and the cus­ customer may save by using such serv­ tomer's or donor's receipt of all of the 

ice; the amount of time necessary to following information: 

achieve the represented results; the (A) An accurate description, clearly 

amount of money or the percentage of and conspicuously stated, of the goods each outstanding debt that the cus­ or services or charitable contribution 

tomer must accumulate before the pro­ for which payment authorization is 

vider of the debt relief service will ini­ sought; tiate attempts with the customer's (B) The number of debits, charges, or creditors or debt collectors or make a payments (if more than one); bona fide offer to negotiate, settle, or (C) The date(s) the debit(s), charge(s), modify the terms of the customer's or payment(s) will be submitted for debt; the effect of the service on a cus­ payment; tomer's creditworthiness; the effect of (D) The amount(s) of the debit(s), the service on collection efforts of the charge(s), or payment(s); customer's creditors or debt collectors; (E) The customer's or donor's name; the percentage or number of customers 

who (F) The customer's or donor's billing attain the represented results; and 

whether information, identified with sufficient a debt relief service is offered specificity such that the customer or or provided by a non-profit entity. donor understands what account will (3) Causing billing information to be be used to collect payment for the submitted for payment, or collecting or goods or services or charitable con­ attempting to collect payment for tribution that are the subject of the goods or services or a charitable con­ telemarketing transaction; tribution, directly or indirectly, without the customer's or donor's express (G) A telephone number for customer 

verifiable authorization, except when or donor inquiry that is answered durthe method of payment used is a credit ing normal business hours; and 

card subject to protections of the (H) The date of the customer's or doTruth in Lending Act and Regulation nor's oral authorization; or 

Z,661 or a debit card subject to the pro­ (iii) Written confirmation of the 

tections of the Electronic Fund Trans­ transaction, identified in a clear and 

fer Act and Regulation E.662 Such au­ conspicuous manner as such on the 

thorization shall be deemed verifiable outside of the envelope, sent to the 

if any of the following means is em­ customer or donor via first class mail 

ployed: prior to the submission for payment of 

(i) Express written authorization by the customer's or donor's billing inforthe customer or donor, which includes mation, and that includes all of the inthe customer's or donor's signature;ss3 formation contained in 

(ii) Express oral authorization which §§ 310.3(a)(3)(ii)(A)-(G) and a clear and 

is audio-recorded and made available conspicuous statement of the proceupon request to the customer or donor, dures by which the customer or donor 

and the customer's or donor's bank or can obtain a refund from the seller or 

other billing entity, and which evi­ telemarketer or charitable organizadences clearly both the customer's or tion in the event the confirmation is 

inaccurate; provided, however, that 

661 Truth in Lending Act, 15 U.S.C. 1601 et this means of authorization shall not 

seq., and Regulation Z, 12 CFR part 226. be deemed verifiable in instances in 662 Electronic Fund Transfer Act, 15 U.S.C. which goods or services are offered in a 1693 et seq., and Regulation E, 12 CFR part transaction involving a free-to-pay 205. conversion and preacquired account in­ 663 For purposes of this Rule, the term formation. "signature" shall include an electronic or ( 4) Making a false or misleading digital form of signature, to the extent that 

such form of signature is recognized as a statement to induce any person to pay 

valid signature under applicable federal law for goods or services or to induce a or state contract law. charitable contribution. 

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Federal Trade Commission §310.4 

(b) Assisting and facilitating. It is a de­ a charitable organization or to any 

ceptive telemarketing act or practice particular charitable program; 

and a violation of this Rule for a per­ (5) Any material aspect of a prize son to provide substantial assistance or promotion including, but not limited 

support to any seller or telemarketer to: the odds of being able to receive a when that person knows or consciously prize; the nature or value of a prize; or avoids knowing that the seller or tele­ that a charitable contribution is re­ marketer is engaged in any act or prac­ quired to win a prize or to participate 

tice that violates §§310.3(a), (c) or (d), in a prize promotion; or or § 310.4 of this Rule. (6) A charitable organization's or (c) Credit card laundering. Except as telemarketer's affiliation with, or en­ expressly permitted by the applicable dorsement or sponsorship by, any per­ credit card system, it is a deceptive son or government entity. telemarketing act or practice and a violation of this Rule for: [75 FR 48516, Aug. 10, 2010, as amended at 80 

FR 77558, Dec. 14, 2015] (1) A merchant to present to or deposit into, or cause another to present § 310.4 Abusive telemarketing acts or to or deposit into, the credit card sys­ practices. tem for payment, a credit card sales (a) is an draft generated by a telemarketing Abusive conduct generally. It 

abusive telemarketing act or practice transaction that is not the result of a and a violation of this Rule for any telemarketing credit card transaction seller or telemarketer to engage in the between the cardholder and the mer­ following conduct: chant; 

(2) Any person to employ, solicit, or (1) Threats, intimidation, or the use 

otherwise cause a merchant, or an em­ of profane or obscene language; 

ployee, representative, or agent of the (2) Requesting or receiving payment 

merchant, to present to or deposit into of any fee or consideration for goods or 

the credit card system for payment, a services represented to remove derogacredit card sales draft generated by a tory information from, or improve, a 

telemarketing transaction that is not person's credit history, credit record, 

the result of a telemarketing credit or credit rating until: 

card transaction between the card­ (i) The time frame in which the seller 

holder and the merchant; or has represented all of the goods or 

(3) Any person to obtain access to the services will be provided to that person 

credit card system through the use of a has expired; and 

business relationship or an affiliation (ii) The seller has provided the person 

with a merchant, when such access is with documentation in the form of a 

not authorized by the merchant agree­ consumer report from a consumer rement or the applicable credit card sys­ porting agency demonstrating that the 

tem. promised results have been achieved, 

(d) Prohibited deceptive acts or prac­ such report having been issued more 

tices in the solicitation of charitable con­ than six months after the results were 

tributions. It is a fraudulent charitable achieved. Nothing in this Rule should 

solicitation, a deceptive telemarketing be construed to affect the requirement 

act or practice, and a violation of this in the Fair Credit Reporting Act, 15 

Rule for any telemarketer soliciting U.S.C. 1681, that a consumer report 

charitable contributions to misrepre­ may only be obtained for a specified 

sent, directly or by implication, any of permissible purpose; 

the following material information: (3) Requesting or receiving payment 

(1) The nature, purpose, or mission of of any fee or consideration from a perany entity on behalf of which a chari­ son for goods or services represented to 

table contribution is being requested; recover or otherwise assist in the re­ (2) That any charitable contribution turn of money or any other i tern of 

is tax deductible in whole or in part; value paid for by, or promised to, that 

(3) The purpose for which any chari­ person in a previous transaction, until 

table contribution will be used; seven (7) business days after such 

(4) The percentage or amount of any money or other item is delivered to 

charitable contribution that will go to that person. This provision shall not 

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§310.4 16 CFR Ch. I (1-1-21 Edition) 

apply to goods or services provided to a (A) The funds are held in an account 

person by a licensed attorney; at an insured financial institution; 

(4) Requesting or receiving payment (B) The customer owns the funds held 

of any fee or consideration in advance in the account and is paid accrued inof obtaining a loan or other extension terest on the account, if any; 

of credit when the seller or tele­ (C) The entity administering the ac­ marketer has guaranteed or rep­ count is not owned or controlled by, or resented a high likelihood of success in in any way affiliated with, the debt re­ obtaining or arranging a loan or other lief service; 

extension of credit for a person; (D) The entity administering the ac­ (5)(i) Requesting or receiving pay­ count does not give or accept any 

ment of any fee or consideration for money or other compensation in ex­ any debt relief service until and unless: change for referrals of business involv­

(A) The seller or telemarketer has re­ ing the debt relief service; and 

negotiated, settled, reduced, or other­ (E) The customer may withdraw from 

wise altered the terms of at least one the debt relief service at any time 

debt pursuant to a settlement agree­ without penalty, and must receive all 

ment, debt management plan, or other funds in the account, other than funds 

such valid contractual agreement exe­ earned by the debt relief service in 

cuted by the customer; compliance with § 310.4(a)(5)(i)(A) 

(B) The customer has made at least through (C), within seven (7) business one payment pursuant to that settle­ days of the customer's request. 

ment agreement, debt management (6) Disclosing or receiving, for con­ plan, or other valid contractual agree­ sideration, unencrypted consumer ac­ ment between the customer and the count numbers for use in telecreditor or debt collector; and marketing; provided, however, that 

(C) To the extent that debts enrolled this paragraph shall not apply to the 

in a service are renegotiated, settled, disclosure or receipt of a customer's or 

reduced, or otherwise altered individ­ donor's billing information to process a 

ually, the fee or consideration either: payment for goods or services or a 

(1) Bears the same proportional rela­ charitable contribution pursuant to a 

tionship to the total fee for renegoti­ transaction; 

ating, settling, reducing, or altering (7) Causing billing information to be 

the terms of the entire debt balance as submitted for payment, directly or inthe individual debt amount bears to directly, without the express informed 

the entire debt amount. The individual consent of the customer or donor. In 

debt amount and the entire debt any telemarketing transaction, the 

amount are those owed at the time the seller or telemarketer must obtain the 

debt was enrolled in the service; or express informed consent of the cus­

(2) Is a percentage of the amount tomer or donor to be charged for the 

saved as a result of the renegotiation, goods or services or charitable consettlement, reduction, or alteration. tribution and to be charged using the 

The percentage charged cannot change identified account. In any telefrom one individual debt to another. marketing transaction involving 

The amount saved is the difference be­ preacquired account information, the 

tween the amount owed at the time the requirements in paragraphs (a)(7)(i) 

debt was enrolled in the service and the through (ii) of this section must be met 

amount actually paid to satisfy the to evidence express informed consent. 

debt. (i) In any telemarketing transaction 

(ii) Nothing in §310.4(a)(5)(i) prohibits involving preacquired account informarequesting or requiring the customer tion and a free-to-pay conversion feato place funds in an account to be used ture, the seller or telemarketer must: 

for the debt relief provider's fees and (A) Obtain from the customer, at a 

for payments to creditors or debt col­ minimum, the last four (4) digits of the 

lectors in connection with the renego­ account number to be charged; 

tiation, settlement, reduction, or other (B) Obtain from the customer his or alteration of the terms of payment or her express agreement to be charged 

other terms of a debt, provided that: for the goods or services and to be 

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Federal Trade Commission §310.4 

charged using the account number pur­ to cause a telemarketer to engage in, 

suant to paragraph (a)(7)(i)(A) of this the following conduct: 

section; and, (i) Causing any telephone to ring, or 

(C) Make and maintain an audio re­ engaging any person in telephone concording of the entire telemarketing versation, repeatedly or continuously 

transaction. with intent to annoy, abuse, or harass 

any person at the called number; (ii) In any other telemarketing trans­ (ii) Denying or interfering in any action involving preacquired account 

way, directly or indirectly, with a per­ information not described in paragraph son's right to be placed on any registry (a)(7)(i) of this section, the seller or of names and/or telephone numbers of telemarketer must: 

persons who do not wish to receive out­ (A) At a minimum, identify the ac­ bound telephone calls established to count to be charged with sufficient comply with paragraph (b)(l)(iii)(A) of specificity for the customer or donor to this section, including, but not limited understand what account will be to, harassing any person who makes charged;and such a request; hanging up on that per­ (B) Obtain from the customer or son; failing to honor the request; re­ donor his or her express agreement to quiring the person to listen to a sales 

be charged for the goods or services pitch before accepting the request; as­ and to be charged using the account sessing a charge or fee for honoring the 

number identified pursuant to para­ request; requiring a person to call a graph (a)(7)(ii)(A) of this section; different number to submit the re­ (8) Failing to transmit or cause to be quest; and requiring the person to identransmitted the telephone number, tify the seller making the call or on and, when made available by the tele­ whose behalf the call is made; 

marketer's carrier, the name of the (iii) Initiating any outbound teletelemarketer, to any caller identifica­ phone call to a person when: 

tion service in use by a recipient of a (A) That person previously has stated 

telemarketing call; provided that it that he or she does not wish to receive 

shall not be a violation to substitute an outbound telephone call made by or 

(for the name and phone number used on behalf of the seller whose goods or 

in, or billed for, making the call) the services are being offered or made on 

name of the seller or charitable organi­ behalf of the charitable organization 

zation on behalf of which a tele­ for which a charitable contribution is 

marketing call is placed, and the sell­ being solicited; or 

er's or charitable organization's cus­ (B) That person's telephone number 

tomer or donor service telephone num­ is on the "do-not-call" registry, mainber, which is answered during regular tained by the Commission, of persons 

business hours; who do not wish to receive outbound 

telephone calls to induce the purchase (9) Creating or causing to be created, of goods or services unless the seller or directly or indirectly, a remotely cre­ telemarketer: ated payment order as payment for Can demonstrate that the seller goods or services offered or sold (1) 

has obtained the express agreement, in through telemarketing or as a chari­ writing, of such person to place calls to table contribution solicited or sought that person. Such written agreement through telemarketing; or shall clearly evidence such person's au­ (10) Accepting from a customer or thorization that calls made by or on donor, directly or indirectly, a cash-to­ behalf of a specific party may be placed cash money transfer or cash reload to that person, and shall include the mechanism as payment for goods or telephone number to which the calls services offered or sold through tele­ may be placed and the signature 664 of marketing or as a charitable contribu­ that person; or tion solicited or sought through telemarketing. For purposes of this Rule, the term (b) Pattern of calls. (1) It is an abusive 664

"signature" shall include an electronic or telemarketing act or practice and a digital form of signature, to the extent that 

violation of this Rule for a tele­ such form of signature is recognized as a marketer to engage in, or for a seller Continued 

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§310.4 16 CFR Ch. I (1-1-21 Edition) 

(2) Can demonstrate that the seller (ii) Within two (2) seconds after the 

has an established business relation­ completed greeting of the person 

ship with such person, and that person called, plays a prerecorded message 

has not stated that he or she does not that promptly provides the disclosures 

wish to receive outbound telephone required by §310.4(d) or (e), followed 

calls under paragraph (b)(l)(iii)(A) of immediately by a disclosure of one or this section; or both of the following: (iv) Abandoning any outbound tele­ (A) In the case of a call that could be 

phone call. An outbound telephone call answered in person by a consumer, that 

is "abandoned" under this section if a the person called can use an automated 

person answers it and the telemarketer interactive voice and/or keypress-acti­ does not connect the call to a sales rep­ vated opt-out mechanism to assert a resen ta ti ve within two (2) seconds of Do Not Call request pursuant to 

the person's completed greeting. § 310.4(b)(l)(iii)(A) at any time during (v) Initiating any outbound telephone the message. The mechanism must: 

call that delivers a prerecorded mes­ (1) Automatically add the number 

sage, other than a prerecorded message called to the seller's entity-specific Do 

permitted for compliance with the call Not Call list; abandonment safe harbor in (2) Once invoked, immediately dis­

§ 310.4(b )( 4)(iii), unless: connect the call; and 

(A) In any such call to induce the (3) Be available for use at any time 

purchase of any good or service, the during the message; and 

seller has obtained from the recipient (B) In the case of a call that could be 

of the call an express agreement, in answered by an answering machine or writing, that: voicemail service, that the person (i) The seller obtained only after a called can use a toll-free telephone clear and conspicuous disclosure that number to assert a Do Not Call request the purpose of the agreement is to au­ pursuant to §310.4(b)(l)(iii)(A). The 

thorize the seller to place prerecorded number provided must connect directly calls to such person; to an automated interactive voice or (ii) The seller obtained without re­ keypress-activated opt-out mechanism 

quiring, directly or indirectly, that the that: 

agreement be executed as a condition (1) Automatically adds the number 

of purchasing any good or service; called to the seller's entity-specific Do 

(iii) Evidences the willingness of the Not Call list; recipient of the call to receive calls (2) Immediately thereafter dis­ that deliver prerecorded messages by connects the call; and or on behalf of a specific seller; and (3) Is accessible at any time through­ (iv) Includes such person's telephone out the duration of the telemarketing number and signature;666 and campaign; and (B) In any such call to induce the (iii) Complies with all other require­ purchase of any good or service, or to ments of this part and other applicable induce a charitable contribution from a federal and state laws. member of, or previous donor to, a non­ (C) Any call that complies with all profit charitable organization on whose applicable requirements of this para­ behalf the call is made, the seller or graph (v) shall not be deemed to violate telemarketer: § 310.4(b)(l)(iv) of this part. (i) Allows the telephone to ring for at (D) This paragraph (v) shall not apply least fifteen (15) seconds or four (4) to any outbound telephone call that de­ rings before disconnecting an unan­ livers a prerecorded healthcare mes­ swered call; and sage made by, or on behalf of, a covered 

entity or its business associate, as valid signature under applicable federal law those terms are defined in the HIP AA or state contract law. Privacy Rule, 45 CFR 160.103. 665 For purposes of this Rule, the term (2) It is an abusive telemarketing act "signature" shall include an electronic or or practice and a violation of this Rule digital form of signature, to the extent that 

such form of signature is recognized as a for any person to sell, rent, lease, purvalid signature under applicable federal law chase, or use any list established to or state contract law. comply with § 310.4(b)(l)(iii)(A), or 

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Federal Trade Commission §310.4 

maintained by the Commission pursu­ day period or portion thereof that the 

ant to §310.4(b)(l)(iii)(B), for any pur­ campaign continues. 

pose except compliance with the provi­ (ii) The seller or telemarketer, for 

sions of this Rule or otherwise to pre­ each telemarketing call placed, allows 

vent telephone calls to telephone num­ the telephone to ring for at least fifbers on such lists. teen (15) seconds or four (4) rings before 

(3) A seller or telemarketer will not disconnecting an unanswered call; 

be liable for violating § 310.4(b)(l)(ii) (iii) Whenever a sales representative 

and (iii) if it can demonstrate that, as is not available to speak with the perpart of the seller's or telemarketer's son answering the call within two (2) 

routine business practice: seconds after the person's completed 

(i) It has established and imple­ greeting, the seller or telemarketer 

mented written procedures to comply promptly plays a recorded message 

with §310.4(b)(l)(ii) and (iii); that states the name and telephone 

(ii) It has trained its personnel, and number of the seller on whose behalf 

any entity assisting in its compliance, the call was placed666 ; and 

in the procedures established pursuant (iv) The seller or telemarketer, in acto §310.4(b)(3)(i); cordance with §310.5(b)-(d), retains 

(iii) The seller, or a telemarketer or records establishing compliance with 

another person acting on behalf of the § 310.4(b )( 4)(i)-(iii). 

seller or charitable organization, has (c) Calling time restrictions. Without 

maintained the prior consent of a person, it is an and recorded a list of tele­ abusive telemarketing act or practice phone numbers the seller or charitable 

organization may not contact, in com­ and a violation of this Rule for a telemarketer to engage in outbound tele­ pliance with§ 310.4(b)(l)(iii)(A); phone calls to a person's residence at (iv) The seller or a telemarketer uses any time other than between 8:00 a.m. a process to prevent telemarketing to and 9:00 p.m. local time at the called any telephone number on any list es­ person's location. tablished pursuant to §310.4(b)(3)(iii) or 310.4(b)(l)(iii)(B), employing a version (d) Required oral disclosures in the sale 

of goods or services. It is an abusive tele­ of the "do-not-call" registry obtained marketing act or practice and a viola­ from the Commission no more than tion of this Rule for a telemarketer in thirty-one (31) days prior to the date an outbound telephone call or internal any call is made, and maintains or external upsell to induce the pur­ records documenting this process; chase of goods or services to fail to dis­ (v) The seller or a telemarketer or close truthfully, promptly, and in a another person acting on behalf of the clear and conspicuous manner to the seller or charitable organization, mon­ person receiving the call, the following itors and enforces compliance with the information: procedures established pursuant to (1) The identity of the seller; § 310.4(b )(3)(i); and (2) That the purpose of the call is to (vi) Any subsequent call otherwise sell goods or services; violating paragraph (b)(l)(ii) or (iii) of (3) The nature of the goods or serv­ this section is the result of error and ices; and not of failure to obtain any informa­ (4) That no purchase or payment is tion necessary to comply with a re­ necessary to be able to win a prize or quest pursuant to paragraph participate in a prize promotion if a (b)(l)(iii)(A) of this section not to re­ prize promotion is offered and that any ceive further calls by or on behalf of a purchase or payment will not increase seller or charitable organization. the person's chances of winning. This (4) A seller or telemarketer will not disclosure must be made before or in be liable for violating §310.4(b)(l)(iv) if: conjunction with the description of the (i) The seller or telemarketer em­ prize to the person called. If requested ploys technology that ensures abandonment of no more than three (3) per­ This provision does not affect any sell­ cent of all calls answered by a person, 666 

er's or telemarketer's obligation to comply measured over the duration of a single with relevant state and federal laws, includcalling campaign, if less than 30 days, ing but not limited to the TCPA, 47 U.S.C. or separately over each successive 30- 227, and 47 CFR part 64.1200. 

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§310.5 16 CFR Ch. I (1-1-21 Edition) 

by that person, the telemarketer must telephone number, and the job title(s) 

disclose the no-purchase/no-payment for all current and former employees 

entry method for the prize promotion; directly involved in telephone sales or provided, however, that, in any inter­ solicitations; provided, however, that if 

nal upsell for the sale of goods or serv­ the seller or telemarketer permits ficices, the seller or telemarketer must titious names to be used by employees, provide the disclosures listed in this each fictitious name must be traceable 

section only to the extent that the in­ to only one specific employee; and formation in the upsell differs from the (5) All verifiable authorizations or disclosures provided in the initial tele­ records of express informed consent or marketing transaction. 

express agreement required to be pro­ (e) Required oral disclosures in chari­ vided or received under this Rule. table solicitations. It is an abusive telemarketing (b) A seller or telemarketer may act or practice and a viola­ keep the records required by §310.5(a) tion of this Rule for a telemarketer, in an outbound telephone call to induce a in any form, and in the same manner, 

charitable contribution, to fail to dis­ format, or place as they keep such 

close truthfully, promptly, and in a records in the ordinary course of busiclear and conspicuous manner to the ness. Failure to keep all records reperson receiving the call, the following quired by §310.5(a) shall be a violation 

information: of this Rule. 

(1) The identity of the charitable or­ (c) The seller and the telemarketer 

ganization on behalf of which the re­ calling on behalf of the seller may, by 

quest is being made; and written agreement, allocate responsi­ (2) That the purpose of the call is to bility between themselves for the rec­ solicit a charitable contribution. ordkeeping required by this Section. 

[75 FR 48516, Aug. 10, 2010, as amended at 76 When a seller and telemarketer have 

FR 58716, Sept. 22, 2011; 80 FR 77559, Dec. 14, entered into such an agreement, the 

2015] terms of that agreement shall govern, 

and the seller or telemarketer, as the 

§ 310.5 Recordkeeping requirements. case may be, need not keep records 

(a) Any seller or telemarketer shall that duplicate those of the other. If the 

keep, for a period of 24 months from agreement is unclear as to who must 

the date the record is produced, the fol­ maintain any required record(s), or if 

lowing records relating to its tele­ no such agreement exists, the seller 

marketing activities: shall be responsible for complying with 

(1) All substantially different adver- §§ 310.5(a)(l)-(3) and (5); the tele­ tising, brochures, telemarketing marketer shall be responsible for com­ scripts, and promotional materials; plying with §310.5(a)(4). (2) The name and last known address (d) In the event of any dissolution or of each prize recipient and the prize termination of the seller's or tele­ awarded for prizes that are rep­ marketer's business, the principal of resented, directly or by implication, to that seller or telemarketer shall main­ have a value of $25.00 or more; tain all records as required under this (3) The name and last known address section. In the event of any sale, as­ of each customer, the goods or services 

signment, or other change in ownership purchased, the date such goods or serv­ ices were shipped or provided, and the of the seller's or telemarketer's busiamount paid by the customer for the ness, the successor business shall maingoods or services;667 tain all records required under this sec­

(4) The name, any fictitious name tion. 

used, the last known home address and 

§ 310.6 Exemptions. 

667 For offers of consumer credit products (a) Solicitations to induce charitable 

subject to the Truth in Lending Act, 15 contributions via outbound telephone U.S.C. 1601 et seq., and Regulation Z, 12 CFR calls are not covered by 226, compliance with the recordkeeping re­ § 310.4(b)(l)(iii)(B) of this Rule. quirements under the Truth in Lending Act, 

and Regulation Z, shall constitute compli­ (b) The following acts or practices ance with §310.5(a)(3) of this Rule. are exempt from this Rule: 

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Federal Trade Commission §310.7 

(1) The sale of pay-per-call services (iii) Any instances of upselling insubject to the Commission's Rule enti­ cluded in such telephone calls; 

tled "Trade Regulation Rule Pursuant (6) Telephone calls initiated by a cus­ to the Telephone Disclosure and Dis­ tomer or donor in response to a direct 

pute Resolution Act of 1992," 16 CFR mail solicitation, including solicitapart 308, provided, however, that this tions via the U.S. Postal Service, facexemption does not apply to the re­ simile transmission, electronic mail, 

quirements of §§310.4(a)(l), (a)(7), (b), and other similar methods of delivery 

and (c); in which a solicitation is directed to 

(2) The sale of franchises subject to specific address(es) or person(s), that 

the Commission's Rule entitled "Dis­ clearly, conspicuously, and truthfully 

closure Requirements and Prohibitions discloses all material information listConcerning Franchising,'' (''Franchise ed in §310.3(a)(l), for any goods or servRule") 16 CFR part 436, and the sale of ices offered in the direct mail solicitabusiness opportunities subject to the tion, and that contains no material 

Commission's Rule entitled "Disclo­ misrepresentation regarding any item 

sure Requirements and Prohibitions contained in §310.3(d) for any requested 

Concerning Business Opportunities,'' charitable contribution; provided, how­

("Business Opportunity Rule") 16 CFR ever, that this exemption does not 

part 437, provided, however, that this apply to: 

exemption does not apply to the re­ (i) Calls initiated by a customer in 

quirements of §§310.4(a)(l), (a)(7), (b), response to a direct mail solicitation 

and (c); relating to prize promotions, invest­

(3) Telephone calls in which the sale ment opportunities, debt relief servof goods or services or charitable solic­ ices, business opportunities other than 

itation is not completed, and payment business arrangements covered by the 

or authorization of payment is not re­ Franchise Rule or Business Opporquired, until after a face-to-face sales tunity Rule, or goods or services deor donation presentation by the seller scribed in § 310.3(a)(l)(vi) or § 310.4(a)(2) 

or charitable organization, provided, through (4); 

however, that this exemption does not (ii) The requirements of § 310.4(a)(9) 

apply to the requirements of or (10); or 

§§ 310.4(a)(l), (a)(7), (b), and (c); (iii) Any instances of upselling in­

(4) Telephone calls initiated by a cus­ cluded in such telephone calls; and 

tomer or donor that are not the result (7) Telephone calls between a teleof any solicitation by a seller, chari­ marketer and any business to induce 

table organization, or telemarketer, the purchase of goods or services or a 

provided, however, that this exemption charitable contribution by the busidoes not apply to any instances of ness, except calls to induce the retail 

upselling included in such telephone sale of nondurable office or cleaning 

calls; supplies; provided, however, that 

(5) Telephone calls initiated by a cus­ §§ 310.4(b)(l)(iii)(B) and 310.5 shall not 

tomer or donor in response to an adver­ apply to sellers or telemarketers of 

tisement through any medium, other nondurable office or cleaning supplies. 

than direct mail solicitation, provided, [75 FR 48516, Aug. 10, 2010, as amended at 80 

however, that this exemption does not FR 77559, Dec. 14, 2015] 

apply to: 

(i) Calls initiated by a customer or § 310. 7 Actions by states and private 

donor in response to an advertisement persons. 

relating to investment opportunities, (a) Any attorney general or other ofdebt relief services, business opportuni­ ficer of a state authorized by the state 

ties other than business arrangements to bring an action under the Telecovered by the Franchise Rule or Busi­ marketing and Consumer Fraud and ness Opportunity Rule, or advertise­ Abuse Prevention Act, and any private 

ments involving offers for goods or person who brings an action under that 

services described in §310.3(a)(l)(vi) or Act, shall serve written notice of its 

§310.4(a)(2) through (4); action on the Commission, if feasible, 

(ii) The requirements of § 310.4(a)(9) prior to its initiating an action under or (10); or this Rule. The notice shall be sent to 

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§310.8 16 CFR Ch. I (1-1-21 Edition) 

the Office of the Director, Bureau of Not Call Registry for any other purConsumer Protection, Federal Trade pose. 

Commission, Washington, DC 20580, and (c) The annual fee, which must be 

shall include a copy of the state's or paid by any person prior to obtaining 

private person's complaint and any access to the National Do Not Call 

other pleadings to be filed with the Registry, is $66 for each area code of 

court. If prior notice is not feasible, data accessed, up to a maximum of 

the state or private person shall serve $18,044; provided, however, that there 

the Commission with the required no­ shall be no charge to any person for actice immediately upon instituting its cessing the first five area codes of data, 

action. and provided further, that there shall be no charge to any person engaging in or (b) Nothing contained in this Section 

causing others to engage in outbound shall prohibit any attorney general or telephone calls to consumers and who other authorized state official from is accessing area codes of data in the proceeding in state court on the basis National Do Not Call Registry if the of an alleged violation of any civil or person is permitted to access, but is criminal statute of such state. 

not required to access, the National Do 

§ 310.8 Fee for access to the National Not Call Registry under this Rule, 47 

Do Not Call Registry. CFR 64.1200, or any other Federal regulation or law. No person may partici­ (a) It is a violation of this Rule for pate in any arrangement to share the 

any seller to initiate, or cause any cost of accessing the National Do Not telemarketer to initiate, an outbound Call Registry, including any arrange­ telephone call to any person whose ment with any telemarketer or service telephone number is within a given provider to divide the costs to access area code unless such seller, either di­ the registry among various clients of rectly or through another person, first that telemarketer or service provider. has paid the annual fee, required by (d) Each person who pays, either di­ §310.B(c), for access to telephone num­ rectly or through another person, the bers within that area code that are in­ annual fee set forth in paragraph (c) of cluded in the National Do Not Call this section, each person excepted Registry maintained by the Commis­ under paragraph (c) from paying the sion under § 310.4(b)(l)(iii)(B); provided, annual fee, and each person excepted however, that such payment is not nec­ from paying an annual fee under 

essary if the seller initiates, or causes § 310.4(b)(l)(iii)(B), will be provided a a telemarketer to initiate, calls solely unique account number that will allow 

to persons pursuant to that person to access the registry data §§ 310.4(b )(l)(iii)(B)(i) or (ii), and the for the selected area codes at any time 

seller does not access the National Do for the twelve month period beginning Not Call Registry for any other pur­ on the first day of the month in which 

pose. the person paid the fee ("the annual pe­ (b) It is a violation of this Rule for riod"). To obtain access to additional 

any telemarketer, on behalf of any sell­ area codes of data during the first six 

er, to initiate an outbound telephone months of the annual period, each per­ call to any person whose telephone son required to pay the fee under para­ number is within a given area code un­ graph (c) of this section must first pay less that seller, either directly or $66 for each additional area code of 

through another person, first has paid data not initially selected. To obtain 

the annual fee, required by §310.B(c), access to additional area codes of data 

for access to the telephone numbers during the second six months of the an­ within that area code that are included nual period, each person required to 

in the National Do Not Call Registry; pay the fee under paragraph (c) of this 

provided, however, that such payment section must first pay $33 for each adis not necessary if the seller initiates, ditional area code of data not initially or causes a telemarketer to initiate, selected. The payment of the addicalls solely to persons pursuant to tional fee will permit the person to ac­ §§ 310.4(b)(l)(iii)(B)(i) or (ii), and the cess the additional area codes of data 

seller does not access the National Do for the remainder of the annual period. 

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Federal Trade Commission §311.3 

(e) Access to the National Do Not SOURCE: 60 FR 55421, Oct. 31, 1995, unless 

Call Registry is limited to tele­ otherwise noted. 

marketers, sellers, others engaged in or causing others to engage in telephone § 311.1 Definitions. 

calls to consumers, service providers As used in this part: acting on behalf of such persons, and (a) Manufacturer means any person 

any government agency that has law who re-refines or otherwise processes enforcement authority. Prior to access­ used oil to remove physical or cheming the National Do Not Call Registry, ical impurities acquired through use or a person must provide the identifying who blends such re-refined or otherwise 

information required by the operator of processed used oil with new oil or addithe registry to collect the fee, and tives. 

must certify, under penalty of law, (b) New oil means any synthetic oil or that the person is accessing the reg­ oil that has been refined from crude oil istry solely to comply with the provi­ and which has not been used and may sions of this Rule or to otherwise pre­ or may not contain additives. Such vent telephone calls to telephone num­ term does not include used oil or recy­ bers on the registry. If the person is ac­ cled oil. cessing the registry on behalf of sell­ (c) Processed used oil means re-refined ers, that person also must identify or otherwise processed used oil or blend each of the sellers on whose behalf it is of oil, consisting of such re-refined or accessing the registry, must provide otherwise processed used oil and new each seller's unique account number oil or additives. for access to the national registry, and 

must certify, under penalty of law, (d) Recycled oil means processed used 

that the sellers will be using the infor­ oil that the manufacturer has determation gathered from the registry mined, pursuant to section 311.4 of this 

solely to comply with the provisions of part, is substantially equivalent to new 

this Rule or otherwise to prevent tele­ oil for use as engine oil. 

phone calls to telephone numbers on (e) Used oil means any synthetic oil 

the registry. or oil that has been refined from crude 

oil, which has been used and, as a re­ [75 FR 48516, Aug. 10, 2010; 75 FR 51934, Aug. 

24, 2010, as amended at 77 FR 51697, Aug. 27, sult of such use, has been contami2012; 78 FR 53643, Aug. 30, 2013; 79 FR 51478, nated by physical or chemical impuriAug. 29, 2014; 80 FR 77560, Dec. 14, 2016; 81 FR ties. 

59845, Aug. 31, 2016; 82 FR 39534, Aug. 21, 2017; (f) Re-refined oil means used oil from 

83 FR 46640, Sept. 14, 2018; 84 FR 44687, Aug. which physical and chemical contami27, 2019; 85 FR 62597, Oct. 5, 2020] nants acquired through use have been 

§ 310.9 Severability. removed. 

The provisions of this Rule are sepa­ § 311.2 Stayed or invalid parts. 

rate and severable from one another. If If any part of this rule is stayed or any provision is stayed or determined held invalid, the rest of it will remain to be invalid, it is the Commission's in­ in force. tention that the remaining provisions 

shall continue in effect. § 311.3 Preemption. 

PART 311-TEST PROCEDURES AND No law, regulation, or order of any 

LABELING STANDARDS FOR RE­ State or political subdivision thereof 

CYCLED OIL may apply, or remain applicable, to 

any container of recycled oil, if such 

law, regulation, or order requires any Sec. 

311.1 Definitions. container of recycled oil, which con311.2 Stayed or invalid parts. tainer bears a label in accordance with 

311.3 Preemption. the terms of §311.5 of this part, to bear 

311.4 Testing. any label with respect to the compara311.5 Labeling. tive characteristics of such recycled oil 

311.6 Prohibited acts. with new oil that is not identical to 

AUTHORITY: 42 U.S.C. 6363(d). that permitted by §311.5 of this part. 

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