Transcript
Automatically generated transcript. It may contain errors and includes testimony in languages other than English that is not individually marked up for assistive technology.
Elana Pirtle-Guiney
Good afternoon.
It is 2:02 PM on Tuesday, September 22nd.
I am calling to order today's City Life Committee.
Wendy, can you please call the roll?
Unidentified speaker
Good afternoon, Maria.
Dan Ryan
Here.
Unidentified speaker
Zimmerman.
Eric Zimmerman
Here.
Unidentified speaker
Avalos.
Candace Avalos
Present.
Unidentified speaker
Ryan.
Dan Ryan
Here.
Unidentified speaker
Pirtle-Guiney.
Elana Pirtle-Guiney
Here.
And Kevin, could you please read us our statement of conduct?
Unidentified speaker
Welcome to the meeting of the City Life Committee.
To testify before this committee in person or virtually, you must sign up in advance on the committee agenda at www.portland.gov/council/agenda/citylife.
Life Committee, or by calling 311.
Information on engaging with the committee can be found at this link.
Registration for virtual testimony closes 1 hour prior to the meeting.
In-person testifiers must sign up before the agenda item is heard.
If public testimony will be taken on an item, individuals may testify for 3 minutes unless the chair states otherwise.
Your microphone will be muted when your time is over.
The chair preserves order.
Disruptive conduct such as shouting, refusing to conclude your testimony when your time is up, or interrupting others' testimony further disruption will result in ejection from the meeting.
Anyone who fails to leave once ejected is subject to arrest for trespass.
Additionally, the committee may take a short recess and reconvene virtually.
Your testimony should address the matter being considered.
When testifying, one, state your name for the record.
If you are a lobbyist, identify the organization you represent.
Thank you.
And 2, virtual testifiers should unmute themselves when the clerk calls your name.
Thank you.
Elana Pirtle-Guiney
Thank you very much, colleagues.
At our last meeting, we got to dive deep on a big topic that we hope will lead to some legislation down the road.
Next meeting, we will dive deep on a different topic through our Advance Portland presentation.
We'll get to look at economic development and then work on a couple of ordinances brought forth by the administration.
But today we get to do some work on items brought forward so we have 3 main items on the agenda today that we'll be hearing, uh, 2 brought by Councilor Zimmerman and one from Councilor Novick.
Uh, before we dive in though, I think we have to approve some minutes.
So Wendy, could you please call the first item on the agenda?
Unidentified speaker
Certainly.
Item number 1, City Life Committee meeting minutes for July 14th, July 28th, and August 11th, 2026.
Elana Pirtle-Guiney
And colleagues, is there any opposition to the minutes?
If not, I believe we can approve them by unanimous consent.
Seeing none.
Okay, minutes approved.
And that moves us to our public input.
Wendy, could you please call the next item on the agenda?
Unidentified speaker
Item number 2, document number 2026-338, public input on City Life Committee topics.
We have one person signed up to testify.
Ghalib El, come on up.
Elana Pirtle-Guiney
Welcome.
Unidentified speaker
And my apologies, just, uh, we're having some trouble with the timer, so you, um, you'll see the timer on the screen, but you will not get that 30-second warning that we normally do.
Ghalib Ben Imhotep L
Well, I timed this thing, so it should come in around 2:55-ish, hopefully.
Unidentified speaker
Perfect.
Ghalib Ben Imhotep L
Greetings, beloved committee members.
I am Ghalib Ben Imhotep L. My district is Domicile 4, and when I last spoke before you, I expressed my dedication to Project Zero.
It's more than just a dedication, it is a will.
By 2050, Portland will be a zero-carbon emission city.
The written testimony that I submitted 2 weeks ago.
It had a couple of visual flubs in it.
I—.
It's the first time I used PowerPoint in a while.
I was a little rusty.
I resubmitted it recently, and hopefully it's a little bit more comprehensible and able to be comprehended.
I am that I am, a solution-oriented being that believes that economy and ecology are not just synonymous, they are one in the same.
Portland's economy is suffering.
That is obvious.
Data centers ruin ecology.
That too is obvious.
Given the previous statements, it is only logical to state that there is no economical benefit to a data center if it does not support the local ecology.
But I am not here to discuss the controversy of the data centers.
I am here because Mother Earth beckons me to action.
If I do not act, if I sit idly by and let things happen, who knows what sort of ecological travesties will befall this area or, or here.
Excuse me.
Excuse me.
Lost my place there.
But that's not a sustainable way of thinking.
It's not the right way of being.
I am the promoter of a progressive Portland.
I have a minor background in law, though I have passed no bar exam and I'm no licensed attorney.
I do realize that there are barriers to what can and can't be done according to Oregon Revised Statutes and state ordinance and municipal policy.
But Mother Earth does not, will not, and is not in, in any sort of manner supposed to have to bend her will to those things.
Thank you.
When things get too hectic, Mother Earth cleanses and then starts all over again.
Humanity cannot afford this.
Portland will not experience this.
I have submitted another document for the committee's review.
If it's agreeable, maybe this document can be presented to Multnomah County for a countywide or even a statewide Project Zero.
We sit on a precipice.
We are powerful enough to dictate whether we fall off that cliff Or whether we spread our wings and fly like the celestial beings that we are.
That choice is yours.
That choice is mine.
That choice is Portland's.
That choice is Oregon's.
The power is yours.
It resides in your hands.
Wield it wisely and know without an iota of if that I love you all unconditionally.
Thank you.
Thank you.
Elana Pirtle-Guiney
Thank you for being here and for the documents.
Keelan McClymont
That concludes public input.
Elana Pirtle-Guiney
Thank you.
Wendy, could you open the next 2 items, items 2 and 3?
No, items 3 and 4, I believe.
Unidentified speaker
Yes, thank you.
Items 3 and 4, documents number 2026-287, Dynamic Pricing and Surveillance Pricing Regulation Presentation, and 2026-288, add regulation of dynamic pricing and prohibition of surveillance pricing in retail code.
Add Code Chapter 7.28.
Elana Pirtle-Guiney
Thank you.
And I am going to turn it over to Councilor Zimmerman, and I believe you and your staff have a presentation for us.
Eric Zimmerman
We do.
Thank you, Chair.
It's great to be here.
I do have both Luke and Daniel from my team at the dais who will help with the presentation.
But as we go through this, I know there'll be some aspect of, defining certain things.
And so that's what this presentation is going to attempt to do while we also lay out both a problem and a solution.
If we can go to the next slide.
The Consumers Opposed to Surveillance Technology, or the COST Ordinance, is really trying to face a problem that is— we just heard about being on the precipice of something.
We're on the precipice of technology moving fast enough and faster than, frankly, I think consumers can, to the point where we can see that technology is headed toward a surveillance-based or an AI-enhanced price-setting model within the retail market.
And so from the perspective of our office and others, it's that if we can get in front of this issue, we have a chance here.
So going to the next slide, I want to just define a few terms.
Dynamic pricing of altering the price of an item for all customers in real time based on external factors such as weather, demand, time of day, and availability of supply.
Surveillance is based— setting the price of an item for a specific customer based on information acquired through their personal data, some history, income, and demographic profiles.
Retail vendor— any business that sells goods to customers within the City of Portland.
And third-party service providers— any business that delivers goods to customers of a retail vendor.
Uh, just noting that neither dynamic yeah.
Not that dynamic pricing nor surveillance pricing are all about the cost of goods so much as— and the cost of labor, but that dynamic and surveillance pricing usually comes after we've seen original prices set.
So just keep that in mind.
We're already on to the next slide, and I just— in terms of the public reaction, the public is already familiar with dynamic pricing.
This is a common practice that we see in rideshare, airlines, hotels, those types of services that a person buys.
Applying that to retail goods, and retail goods is what today is really about.
I say that because I want to make sure I underline for you that today's ordinance is not, is not taking any action against the service industry, and there's more to come on that, but I wanted to be very clear we're talking about retail goods.
Moving to the next slide, thank you.
You've seen some stuff across the country that cities and states around the nation have started to act.
Even our own Senator Merkley and Representative Hoyle, both from Oregon, have been trying to work federal legislation to halt this type of what could be potential price manipulation in the retail goods, but certainly what we're seeing in the services area.
We've listed here some states who've already tried to take some action or successfully taken some action.
And we'll just say that as technology moves rapidly in this moment, when all things related to technology advances, I think everybody's trying to keep up here.
So moving to the next, the reason that we're bringing this forward to you is really in terms of ensuring that Portland doesn't slide any further away from making sure that everybody's treated fairly when they're in the retail market.
That we're talking about affordability, we're talking about a consumer protection issue, and ultimately this comes down to a fairness issue for all shoppers and ensuring that your private information is not used to set prices for you.
So what does the cost ordinance do and how does it regulate?
So in terms of how does it regulate dynamic pricing, prices cannot be increased more than once In a calendar day and applies to all retail vendors and third-party delivery service providers.
In our discussions about what is a norm within the market, we've found that a once-a-day price change is quite reasonable and that we're all familiar with the need to move— I'm going to use grocery as an instance— but the need to move a product.
Yes.
None of this gets in the way of that, but making sure that if you went to the store, you know, at 10 AM versus 1 PM, that there's a reasonable expectation that prices remain the same unless it's part of a program set of changes.
So what does it do for surveillance pricing?
It really means that personal data, including any of your protected class data, cannot be used to establish a retail price specifically to you, is an important and it applies to all retail vendors and third-party delivery service providers.
We can go to the next slide.
Actually, excuse me, before I talk about this a little bit, I do want to just say in terms of what does the ordinance do, we also have the ordinance not taking place until July 1st, 2027.
So really, given the timeline of this council and how it comes out of— if it comes out, if you all decide to send it to council, I see that as basically coming up to be yeah.
So we're talking between 6 to 9 months before going live.
But the good thing here is that generally we don't believe and have not heard from retailers that this is already a technology in place.
And so what we'd be sending is a signal to folks who do business in Portland of, we know you're getting pitched on this technology.
We're telling you, don't invest in that kind of capital expansion because we're not going to allow it here.
But this is what you see in terms of our day here, or of our implementation.
The provisions this will cover matters that are not preempted by state or federal law, and we're not trying to create a complicated patchwork, which is why you see some pretty broad terms in order to avoid loopholes and what-ifs and just be very straightforward with Portlanders, with consumers, and with businesses.
I also want to be really clear, just given the nature of this conversation across the country, that this ordinance is not prohibiting the use of electronic shelf labels, as you saw in the picture in the opening of this.
The label themselves is not the concerning aspect.
It is the technology that is enabled to exploit based on the use of labels.
And so we're going to go after the technology and the exploitative stuff instead of just the change in label technology.
So, uh, in this discussion, it is inherent, you're going to get to the point where you talk about loyalty programs.
And loyalty programs mean things like Safeway Rewards, Fred Meyer Rewards, Costco memberships, Amazon Prime memberships— those types of things that we all are aware, well aware of, and many people are members of.
That this does not attack any of those typical programs and those that are set up for their consumers.
The cost ordinance doesn't limit or regulate discounts and sales and loyalty programs.
Retailers can still continue to offer those discounts to attract customers, to build that customer base.
Membership and loyalty and rewards subscription are all untouched in this.
Signing up for a mailing list or agreeing to share your personal data, registering for promotions, communications, those are all, I think, things we're used to.
Another area that we're not trying to attack here and making sure is protected is If a person is part of a professional group, so we see veterans discounts, we see teachers discounts, sometimes we see student discounts, sometimes residents of a certain area, maybe a neighborhood has said we're going to have a promotion for members of this neighborhood, youth and senior citizens.
These are all things that I think are fairly common within the American consumer market and we're all quite used to.
And I want to be clear that this yes.
Is not changing anything for them.
And of course, your coupons, promotions, things of that nature.
What we're really trying to say is that retailers can set different service-based fees on objective costs for delivering prices and goods, but that's between them and their consumer and how they're going to be competitive in the market, and that those loyalty programs are part of that.
So in terms of if this were to go forward, how would a cost ordinance be enforced?
The law has a penalty structure with opportunities to cure any violations.
And so we see that basically go through the typical city administrator's office/hearings officer program that we see in other parts of the city.
If a violation is determined, a penalty can be assessed on a retailer or a delivery provider.
If it's a violation for— it is a violation for each consumer for whom a price has been set in a non-compliant manner.
And penalties can be waived if the violation is cured within 45 days after the notice is received by the business for the first violation in a 24-month period.
I want to just note here a little bit of our approach in working to come up with an enforcement and a violation structure, which was we are getting ahead of a technology.
We're asking, we're asking the market not to adopt a certain type of technology.
And I think that that's important because we're laying out a set of expectations for what it would be like to be a consumer in Portland.
And so while we have some flexibility in here, I also expect that if we set a standard early and now, we can avoid a significant number of issues because we won't be unraveling a current practice.
We're actually preventing a future practice.
So just to kind of get you an idea for what a penalty amount might look like if If we pass such a thing, is that it's noted in the ordinance as $1,000 for the first violation in a calendar year, $5,000 for a second violation in that same calendar year, and $7,500 for any subsequent violation in the same calendar year.
And that's how that's laid out going through our typical human— excuse me, hearings officer.
I do want to invite up some members of the community who've helped us draft some of this legislation.
Mike Salvaggio from United Food and Commercial Workers Local 555.
Michael Salvaggio
Hi.
Eric Zimmerman
If you wouldn't mind joining us at the dais, and Amanda Dalton from the Northwest Grocery Retail Association.
I'd invite you both up as invited testimony, and I thank you guys for your time.
I know you were here about a month ago, so thank you for coming back.
Mike, do you want to start since you're on the top of the list?
Michael Salvaggio
Thank you, Madam Chair, Mr. Councilor, members of the committee.
For the record, my name is Michael Salvaggio.
I am here representing United Food and Commercial Workers Local 555.
We have tens of thousands of members in Oregon and bits of Washington and Idaho.
We are Oregon's largest private sector union.
And if you are shopping at a Safeway, Fred Meyer, Albertsons, or a number of other stores in the area, you're probably interacting with our members.
The reason that we've brought this up is that like many Portlanders, our members are struggling with not only high but unpredictable prices that are the effect of a number of different factors that are going on in our country and in the world right now.
Compounding that though, as Councilor Zimmerman mentioned, what we see on the horizon with regard to these emerging technologies.
The advent of electronic shelving labels is, again, as Councilor Zimmerman noted, not in and of itself nefarious, but the ability of some of these third-party technology providers to then go ahead and pitch certain products that are attached to those is what really has kind of got our backup.
And I want to say for the record, we're not talking about the Kroger Company or Safeway Albertsons.
We're talking about companies that the average Portlander probably has never heard of, such as Nationwide Group or UiPath or Tenging.
Tenging.
These are companies that are not really hiding their hands in terms of what they're pitching.
They're actively suggesting to retailers to use this technology for things like, and I'll just kind of quote, this is from Nationwide Group, by using digital price tags, product pricing is automatically updated, resulting in a reduction of missed margin opportunities.
Or to put that another way, if there's an opportunity to charge the customer a higher price, we're not gonna miss that.
We see elements such as agentic AI at work, which means an AI system that is acting on its own without a human intermediary in order to, as one other provider puts it, quote, interpret customer context from live data and every pricing decision is predicated, optimized, and executed automatically.
These are the types of invasive pricing models that we're concerned about in the future.
And so again, as Councilor Zimmerman, and I'm gonna refer to Councilor Zimmerman a lot given that he made a good presentation, as the Councilor said, this is—.
Yeah.
Not something where we're gonna pass a measure and then people are gonna go to the grocery store and see something drastically different than they did before.
This is preventative.
And so we have a draft that we see here.
We're, just for the record, in favor of the draft.
We're probably going to be doing some additional work at the state level on this for things that the city's not able to tackle.
Thank you.
But the— I did want to put a few things on the record as well, and that is our organization's desire to make sure that those loyalty programs are protected.
When we talk about loyalty programs, you know, we were thinking of that Fred Meyer card, that Safeway card, things that are keeping customers coming back to that union store, we want to keep those in place because we do want those customers to keep on coming back to those union stores.
And so whatever measure or adjustments or amendments are being considered or come down the pike, or if they stay as is, we just want to make sure that we're conveying our desire to hold those programs harmless.
Thank you.
And I'm sure there's plenty more I could say, but I will save some for questions in case anyone wants to dig in a little deeper on that.
Eric Zimmerman
Thank you, Mr. Salvaggio.
Appreciate you spending so much time with us both last month and now and helping us understand this topic even better.
Michael Salvaggio
Always a pleasure.
Eric Zimmerman
Yeah.
Amanda, do you want to go ahead?
Elana Pirtle-Guiney
Absolutely.
Unidentified speaker
Chair Pirtle-Guiney, members of the committee, Amanda Dalton.
I'm the president of the Northwest Grocery Retail Association.
Our members include large and small grocery retailers, delivery partners, and companies that stock your store shelves across the city, including in Oregon and Washington and Idaho.
I do also want to echo the thanks and appreciation to Councilor Zimmerman and his team— nice to see you— who has really put a ton of work into the amended ordinance that's before you.
As you've heard, this is an issue that's being debated across the country, and right now elsewhere who are in our region.
It won't surprise you that we believe an issue like this is better addressed at the state level.
Shoppers, retailers, delivery networks don't stop at city boundaries, and a patchwork of different local requirements does create real challenges.
That being said, if Portland is going to act locally, we appreciate the thoughtful and straightforward approach presented in the amended ordinance before you.
I will note that it stands in stark contrast to a vote that's taking place right now in the city of Seattle, where we expect a policy to advance which will significantly restrict legitimate discounts and promotions and ultimately create unintended cost increases for our shoppers.
Our members support protections that are clear, that prevent consumers from being charged higher prices based on their personal information.
I want to be very clear about this point: grocery stores in Portland are not doing this today.
Thank you.
Grocery is a highly competitive, low-margin business where prices and promotions change for many legitimate reasons.
So getting the distinction between individualized price increases and ordinary competitive pricing right matters to both retailers and to consumers.
At the same time, grocery shoppers increasingly rely on discounts, promotions, and loyalty programs to stretch household budgets.
So throughout this process, our goal, and one that we very much appreciate has been echoed by UFCW and Councilor Zimmerman, has been to make sure the ordinance presented is aimed at preventing unfair pricing practices while not inadvertently eliminating the savings that your shoppers depend on.
I will say this is not an ordinance that our industry would have drafted, and there are amendments that we would have preferred to see included.
However, we also recognize that policymaking done right requires compromise, and we appreciate that many of our concerns have been addressed and are included in the proposal before you.
This includes loyalty protect— protecting programs like loyalty programs, member pricing, manufacturer coupons, promotions, rewards, and rebates.
I also want to recognize the approach to enforcement.
Notice of violations, escalating penalties for subsequent violations, and the ability to cure a first alleged violation with discretion to pursue enforcement after that within 45 days creates a fair mechanism that prioritizes compliance while maintaining meaningful consumer protections.
That's particularly important because this ordinance applies to retailers of all size.
We believe it's possible to protect consumers from unfair pricing practices while preserving the savings they rely on every day.
The amended ordinance before you does this and distinguishes between practices that can harm consumers and those that can benefit from them.
And finds a workable balance.
And for those reasons, we appreciate the proposal before you and the work that went into getting it here.
Thank you.
Eric Zimmerman
Ms. Dalton, thank you for spending so much time with us, and we appreciate working with you on that.
So colleagues, I would like to move into questions, but I just want to, you know, go a little less formal than the presentation.
But really, our thank you.
Thank you, Councilor Ryan.
Thank you to our panel.
And the idea around this, they've summed it up, right?
It's about preventing future exploitation.
It's about preventing future unfair price practices.
It's preventing, I think, a PII market, personally identifiable information market.
It's about preserving loyalty programs and the consumer market that many of us have come to understand.
And it's also preserving large and small businesses.
Small retailers, grocers in our community, which I, I think is important.
You know, there are going to be opportunities, I think, in this next legislative session at the state level, and I think that that is likely to go bigger and farther in terms of the types of things that people buy.
Um, and I think that that will be appropriate for them.
I agree with the sentiment about a patchwork, and I think that the, the ordinance addresses if a patchwork exists that we would be We would be subject to state or federal law if they come about.
I think that's important.
It's also an opportunity for us as Portland moving ahead to set an expectation or a standard, potentially to shape and help the state get it right.
And sometimes we see things at the state move wonderfully, and other times we're left wanting.
And I think this helps us set a tone and an agenda that can be good for the state.
I will not move it now, but I do want to flag it now that you will see in the next item Zimmerman 1 as an amendment.
It adds a single paragraph for a retail price in there and a couple of other administrative word changes.
That is what I will move to replace the existing ordinance.
So a new, a new, I think it's H paragraph, but I wanted you to be aware of that before we go into further discussion.
Thank you.
But I hope that we're a city who's ready to say that no matter where the technology goes, that when you walk into a grocery store with your cell phone, that the scanner doesn't say, look, it's Eric Zimmerman, let's start setting prices based on him and his specific information because his cell phone walked through the door, and make sure that we continue to set prices based on market and fairness and non-exploitative practices.
So thank you, Chair, for getting us scheduled.
I'm really appreciative to everybody's partnership on this, and I know that Councilor Councilor Smith and Councilor Coimbra Lane have both indicated a desire, a potential desire to add their names as co-sponsors in the future to this.
So thank you.
Elana Pirtle-Guiney
Thank you, Councilor, and thank you to both of our guests for being here today as well.
Colleagues, we'll move into questions.
I will note that we do not have anybody signed up for public testimony.
I also want to note that we have 2 amendments posted, one from Councilor Zimmerman and one from Councilor Murillo.
Councilor Zimmerman, do you prefer Do you prefer to, if your Zimmerman 1 is a replacement, do you prefer to adopt that before we move into discussion or would you like to move into discussion first?
Eric Zimmerman
I think that would be most healthy.
Yeah, it's a one add to it.
I think that'd be great.
And then we can just discuss it as it is if we can do that.
Luke Zach
Okay.
Elana Pirtle-Guiney
And Councilor Murillo, does your amendment, I wanna make sure that we're able to debate your amendment if you plan to move it.
Is it to the Zimmerman 1 version or the underlying version?
Angelita Morillo
For clarity, the new version just amends one line in your current ordinance?
Eric Zimmerman
I'm sorry, can you say that again?
It adds F, retail price, and it adjusts a couple of words in the following C.
Angelita Morillo
Gotcha.
Oh, okay.
Sorry, I got confused with what you were saying, Chair.
My amendment is to the underlying ordinance, Okay.
Elana Pirtle-Guiney
I would suggest in order for us to have this debate that we consider Zimmerman 1, and then if, Councilor, we need to have some conforming language to your amendment, if the body decides to move in that direction, we can work through that.
Angelita Morillo
That sounds fine with me.
Candace Avalos
Okay.
Elana Pirtle-Guiney
So Councilor Zimmerman, if you wanna make that motion before we move to Councilor Murillo, who's in the queue, go right ahead.
Eric Zimmerman
Thank you.
I'd like to move Zimmerman 1.
Dan Ryan
Second.
Elana Pirtle-Guiney
Okay, colleagues, any debate to Zimmerman 1 so that we can move into debating what our colleague intends to move forward?
Okay.
Angelita Morillo
Can you, can you just restate quickly what the change does?
Dan Ryan
Sure.
Eric Zimmerman
So Zimmerman 1 adds a new paragraph F. Retail price means the then-current price of a good offered to a consumer prior to the application of any loyalty or membership of pricing, promotions, limited-time sales, discounts, and fees for premium or additional features.
So that is in the definitions section.
So then the cascading paragraphs all have to adjust by one.
Then in the restrictions and prohibitions paragraph under C, we strike the word available in number 1 and all and add the letter A.
Second.
So offer— offering discounts a consumer through a voluntary loyalty membership rewards program or subscription.
And then the second, number 2 there, offering same changes, offering discounts to a consumer based on etc., etc.
At the very bottom of the document, in the effective date and interaction with other laws, paragraph B, this provision of the chapter will be superseded and unenforceable upon the effective date of any conflicting law passed by the State of Oregon.
And we're inserting a period at the end of State of Oregon.
Currently it has regulating the use of dynamic pricing or surveillance pricing by retail, et cetera, et cetera.
We're striking that to just not be redundant based on the advice of the City Council or City Attorney.
Second.
Those are the— that's the summation of all the changes.
Elana Pirtle-Guiney
Okay.
Councilor Murillo, did you have a question or comments about Zimmerman 1?
Angelita Morillo
No, that all sounds fine to me.
I think I— so I really like that we are trying to ban surveillance pricing here.
I'm very excited about this as a concept.
As you know, I'm very into banning AI price fixing overall.
I think I have— my amendment has some line-by-line changes.
And so I am a little concerned about if I go through this and try to explain it to people, if it has the updated line change that then changes all the lettering, that might be hard for people to follow.
But I don't care if other people don't care.
I'm just saying that that might make it harder to explain.
So up to you guys, but I'm just noting that it might be more difficult to follow, but I have ways of making it easier as well if we can.
Elana Pirtle-Guiney
Let's work through that when we get there.
Dan Ryan
Okay.
Elana Pirtle-Guiney
Um, and let Councilor Zimmerman, since he's bringing this, get to the version he wants.
And if we need to figure out how to work through the other pieces, we can do that.
Angelita Morillo
Okay, no worries.
Well, I'm fine with this amendment.
Sounds good.
Elana Pirtle-Guiney
Okay, great.
Wendy, we have a motion and a second.
Could you call the roll on Zimmerman 1, please?
Unidentified speaker
And my apologies, can you tell me who moved that?
Elana Pirtle-Guiney
Moved by Zimmerman, seconded by Ryan, I believe.
Angelita Morillo
Morillo?
Aye.
Unidentified speaker
Zimmerman?
Eric Zimmerman
Aye.
Keelan McClymont
Avalos?
Candace Avalos
Aye.
Keelan McClymont
Ryan?
Dan Ryan
Aye.
Unidentified speaker
Pirtle-Guiney?
Elana Pirtle-Guiney
Aye.
Unidentified speaker
Motion to amend the ordinance as shown in Zimmerman 1 passes.
Elana Pirtle-Guiney
Thank you.
And colleagues, I apologize, as we were having that conversation, we did have somebody in the room sign up So why don't we bring up our testifier and then we'll move into our debate?
Eric Zimmerman
Yeah, and I'm going to ask my staff to go print Maria 1 for everybody.
Angelita Morillo
I have it printed.
Eric Zimmerman
Oh, thank you.
Never mind.
Angelita Morillo
Madam Chair, do you want me to explain what my amendment does before the person testifies?
Elana Pirtle-Guiney
Sure.
Why don't we have you walk through the amendment and then before we move into debate, we will hear from our guest testifier.
Angelita Morillo
Okay, so I'll be brief for this.
It's quite technical, so I apologize for folks who have to follow along.
I do have something visually to help make it a little bit easier while we're discussing, but I have an amendment package to introduce.
It's to— I want to be clear that it protects discounts and loyalty programs, and it requires that these retailers offer discounts transparently to everyone who is similarly situated.
This package basically just aligns us with what other states have done and addresses issues of surveillance pricing in practice and also adds some enforcement mechanisms.
So nothing in this limits discounts.
It limits discount size from your personal data.
And I can get into that further, but I just wanted folks who are coming to testify to have a little bit of background on what that does.
And with that, I will pass it off to whoever is coming up.
Thanks.
Elana Pirtle-Guiney
Great.
Thank you, Councilor.
Wendy, could you please call our testifier?
Unidentified speaker
Rod Pittman, come on up to the dais.
Elana Pirtle-Guiney
Welcome.
Thank you for being here with us today.
You want to take a seat and introduce yourself for the record so that our staff have that?
And then you'll have— are we— what is our clock set at for today?
3 minutes, Wendy?
Unidentified speaker
It's 3 minutes, and you'll see it as a very small number on the screen in front of you.
Elana Pirtle-Guiney
Right down there in front of you, in the middle of the circle.
Unidentified speaker
Oh yeah, yeah.
Elana Pirtle-Guiney
Perfect.
So you'll have 3 minutes to go ahead.
Eric Zimmerman
I'm gonna do under 60.
I'm Rod Pittman, and I live in the Johns Landing area, but I've lived all over Portland, you know, Downtown, Sellwood, all over Portland.
And I'm just— I just wanted to come and say how grateful that we are that y'all are addressing all of this stuff.
And because if we can get a handle in on this, then we'll be able to do a much better job of getting the potholes and fixed in the police department, or what they need, and make sure that there's no hanky-panky involved being price fixing and things like that.
Thank you much for your time.
Unidentified speaker
Have a great day.
Elana Pirtle-Guiney
Thank you so much for being here and for your testimony.
We appreciate hearing from you.
Keelan McClymont
That concludes testimony.
Elana Pirtle-Guiney
Okay, colleagues, we will now move into discussion.
We are at discussion of the underlying, or the now amended, I should say, the now amended ordinance.
Councilor Morillo.
Angelita Morillo
Is now the right time to introduce my amendment?
Elana Pirtle-Guiney
Go right ahead.
Angelita Morillo
Okay, thank you.
For folks who are following along online, the amendment was posted online now, so I think you should be able to see that.
I'm looking to confirm.
Okay, it looks like it is posted online.
But for the sake of discussion for our committee, I know that it's quite long and technical, so I have an option to make it a little bit easier to follow my logic.
And so I'll share my screen quickly and then go through this quickly and get into discussion.
We also have an attorney here who helped us with our amendments.
They reviewed them all today, or they reviewed them for a few days.
But got final review today.
So they're in good standing and just wanted to share that with folks before I get started.
Elana Pirtle-Guiney
Councilor, just to clarify, they were reviewed by the City Attorney's Office?
Angelita Morillo
Correct, yes.
Candace Avalos
Okay.
Angelita Morillo
And I hope everyone knows that this is my version of being extremely excited about a policy.
So because I really hate price fixing and I really hate AI.
I'm trying to see if I can share this slideshow.
Looks like it is in— is anyone here for tech support?
Can you help me share this slideshow?
Thanks.
Eric Zimmerman
Yes.
Angelita Morillo
Oh, thank you.
Eric Zimmerman
I can share this board then.
Angelita Morillo
Perfect.
Thank you so much.
Um, okay, I'll go, I'll go through this quickly because I want to make sure we have time to actually discuss it and go through So surveillance pricing, as we've discussed, it targets different prices at individual consumers, and they do that by using people's private information, and that is called individualized or first-degree price discrimination.
So the things that we know that they are collecting on us are what we buy, your debt, where you live, what phone you use, all of those types of things.
And we know that, for example, Kroger has profiles that run to 62 pages per household, so a lot of data on people.
And what they can infer from that data So they can literally target even your emotional well-being to figure out when to push a product to you.
And they can set your price or your discount or your fee to what the model says you as a consumer are going to tolerate.
So if you can afford it, or if you're willing to pay more for an item, they have all of that data collected on you to actually push that forward.
Thank you.
A lot of these companies consume as many as 2,000 different data points on customers to aggregate this and give you your own individual specific price.
So are discounts surveillance pricing?
I think coupons is a big question that we have in this policy that I want to address.
Third-degree price discrimination has always been allowed.
It's not surveillance pricing even if personal information is involved.
I think that's a good point.
So we've always had things like senior, student, or veteran discounts that are in the form of coupons.
And those are permissible because they are publicly advertised.
So everyone has access to this.
Broad consumer segments can access this without having their individual data scrubbed and added into a dataset to be given to them.
So the reason that these types of discounts and coupons work is because there is transparency to who they are given to and why.
And they're equally applied, which is very different from what we see with these retailers who are aggregating people's data.
So the question is that personal data should decide whether you qualify for a public offer, but not how much you individually get.
This is just a slide.
I won't go through each individual example, but it shows the different offerings that were given to different people based on their own data, experiences, background, et cetera, and the prices that they're willing to tolerate, and I think that's important for us to take a look at.
So surveillance discounting is another form of first-degree price discrimination where retailers engage in surveillance pricing, but it's presented as a discount.
So people tend to not fight it as much because they don't realize that technically someone else could be getting a better discount or a worse discount based on who they are and what data the company has on them.
And that's distributed on an individual basis with their personal data.
So the question for me in this policy is, do we regulate individual— do we regulate individualized surveillance discounts?
And I think my opinion is that yes, we do have to regulate that as well because it is based on personal data.
So whenever individual in a market is offered a different discount based on their willingness and ability to pay, that means that that discount— retailers can show any price as the base that's a form of price discrimination that I want to make sure is accounted for here.
So the benefits of regulating surveillance discounting include protecting prices that are predictable, transparent, and fair.
Here is another example of what different— what the same shoppers are getting for the same product.
I think it's important to note that So under the Zimmerman 1 option, an app that shows you something for $6.49 for an item, another shopper might see for $5.99.
Under Councilor Zimmerman's ordinance, it's banned but hard to catch.
There's no records of duty, no guarantee of enforcement.
With my amendments, it's banned and enforceable.
A retail price cannot be based on personal data.
Thank you.
Under the original ordinance, if there's another example, you and your neighbors see different prices.
When caught, the company calls it pricing test.
Under the current ordinance, it's not very clearly banned.
Only a price based on your personal data is covered, and the company will say a pricing test is not.
Under my amendments, it is banned.
There are different prices for different shoppers, different prices for different shoppers, whether the reason is your data or a coin flip.
Is all banned.
Under the third example, the shelf price is $4.99.
The app shows you $5.99 with a dollar off.
You pay $4.99 with others paying $4.49.
Under the current ordinance, that's exempt.
Individual consumers can be offered different discounts or different prices.
Under my amendments, that is also banned.
So surveillance discounting is not permitted for the reasons that we went over earlier.
Elana Pirtle-Guiney
Thank you.
Angelita Morillo
And my last example, you get 50 cents off and your neighbor gets a dollar off the same item because a model says that you'll pay more.
The current ordinance exempts it by text discounts to a consumer through a voluntary loyalty program.
Under mine, that's banned as well because we have seen that certain states are viewing this voluntary data sharing as a loophole that retailers are able to use to continue to collect people's data.
Candace Avalos
Thank you.
Angelita Morillo
This gives into more examples of what our amendments do, but basically I am just going through line by line and strengthening some of the language and making sure that there aren't loopholes that retailers can use to continue collecting people's data.
So I will let folks just read through that on their own time because I want to make sure we're not taking up too much time here.
So I want to talk about what stays the same very quickly in this amendment list.
The amendments democratize and protect discounts while offering protections to consumers from surveillance discounts.
So people who are seniors, students, teachers, veterans, and youth can still get discounts.
Coupons, sales, price matching, and rebates— everyone can still get those.
Loyalty and rewards programs are still permissible as long as all members are treated equally.
Cheaper delivery when you live closer to the store is still available.
Pricing error corrections and credits when an order goes wrong, still available.
And any sales seasonal prices and prices that rise or fall for everyone are also still permissible.
And if folks want a list of our research that we did, we also spoke with a lot of consumer justice thank you.
We've also been working with a number of civil rights and social justice organizations to get some of their feedback about what they're seeing.
So you can go through some of that if you're interested.
I know that Seattle, in their policy, they've been working with over 40 organizations to have these discussions.
Antitrust law is very complicated, as we recall from the AI price fixing ban.
And so I hope you'll bear with me as we go through all of this, but I'm very excited about this and looking forward to collaborating on it.
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor.
Is that presentation available to be posted so that folks can look at it?
And is it clear that it comes from your office so that anybody pulling it up online knows that?
Angelita Morillo
It will be available to be posted.
They're going to post it right after this committee, and we can make sure that it has our office's information in case anyone has further questions.
Elana Pirtle-Guiney
Great, thank you very much.
Thank you.
Um, are you formally moving the amendment?
Angelita Morillo
Um, yes, I would like to move this amendment package forward.
We can call it Morillo 1.
Candace Avalos
Second.
Elana Pirtle-Guiney
Okay, uh, with a motion and a second, we're now in discussion to the amendment.
Is there any discussion to the amendment?
Okay.
Angelita Morillo
Yeah.
Elana Pirtle-Guiney
I'll jump in with a question.
Um, this is a question actually, Councilor Zimmerman, for you.
One of the things that Councilor Murillo showed in those examples that we ran through there were situations where a consumer could pay a higher price than the advertised price or the listed price because there was a price listed or advertised and then a higher price sent to you on an app with a discount that still put it higher.
Does your underlying— and I, I'm sorry, I just wasn't able to find it going through quickly, so I'm hoping you can direct me more quickly than I can find it myself— does your underlying specify that discounts, um, that, that an advertised price must be the same, or that discounts must be taken from an advertised price?
I'm wondering if those scenarios are actually Thank you.
Eric Zimmerman
Staff, weigh in here if you have it, but I think that where that question is most perfectly addressed is probably in the new F that we just adopted.
Retail price means the then-current price of a good offered to a consumer prior to the application of a loyalty or membership pricing, promotions, limited-time sales, discounts, and fees for premium or additional features.
Unidentified speaker
Thank you.
Elana Pirtle-Guiney
Okay, so with—.
Eric Zimmerman
I think that's what addresses it.
Elana Pirtle-Guiney
F, thank you, because I thought I had seen something here and couldn't find it.
Um, okay, offered to a consumer.
So you don't talk about advertised prices at all, but we do with F start to get at those concerns, it looks like.
Luke Zach
If I may.
Luke Zach with Councilor Zimmerman, for the record.
The question that you had, we had earlier versions that talked about advertised pricing and stuff along the lines with that.
But what we wanted to get at here with including the definition for the retail price, and it differs from Councilor Murillo's amendment in that our definition of retail price talks about it before there's any sort of applied discounts, any promotional fees, anything like that.
Okay.
And we found that was important, and we heard feedback that it was important to set a starting point for the conversation so there isn't a sort of logical loop of trying to figure out what the retail price is.
And that is important, especially around the dynamic pricing restriction that we talk about, making sure that that is the price that can only increase once a calendar day.
Elana Pirtle-Guiney
Got it.
Okay, thank you.
That's really helpful understanding how it ties into that piece.
Councilor Zimmerman, go right ahead.
Eric Zimmerman
Chair, I was wondering, since we had 2 of our invited expert testimony, I, I'm digesting this in real time as much as you all are, um, and I'm, I'm interested if you would entertain them coming back to the dais.
I'd like to understand their take on both of these, or from both of them.
Elana Pirtle-Guiney
I would be happy to have them come back up.
Um, Mr. Salvaggio, Ms.
Angelita Morillo
Dalton, if either of you have can we also have Attorney Matt Gander come up?
Elana Pirtle-Guiney
Let's hear from these 2 individuals, and then I'm happy to have the attorney come up as well.
Yeah, I think this request was to hear from the speakers.
Happy to make sure we can hear from the attorney next.
I'm guessing if we're all just seeing this that you are as well, but if you have any initial thoughts on the document, we can go through it.
How this would work on the ground from either of your perspectives, that would be great.
Mr. Salvaggio, do you wanna start since you spoke first prior?
Michael Salvaggio
Sure.
Thank you, Madam Chair, members of the committee.
Again, for the record, Michael Salvaggio representing United Food and Commercial Workers Local 555.
I apologize that I haven't had a significant amount of time To review the Morillo 1 amendments.
But I do want to say firstly that I appreciate Councilor Morillo's very robust analysis.
I'm— I would say that I'm a little concerned in that I— there's a lot to unpack here because there's so much more being added, and I wouldn't want to get into a situation in which we had missed a particularly relevant cross-reference effect, such as there's a reference to, I think in here somewhere, in the definitions where it says any business or agent that sells consumer goods to consumers, blah, blah, blah, blah, blah.
And I get exactly what the point of that is, in that we don't want a business to say, well, that was really our third-party agent that did that, so our hands are clean.
Candace Avalos
Right.
Michael Salvaggio
Having said that, it brings up the question for me, how many other areas in the business code don't have or agent after them and yet are just generally accepted to apply to agents?
And I would not want to list that here and then create an implication that part of the business code that did not include that did not include such third-party agents.
That's an example of the type of cross-reference that I would need more time to really dig into before having a solid analysis.
I will say generally with regard to private right of action, although there are areas where my colleague in the grocery industry and I agree and there are areas where we disagree, We will be having a vibrant back and forth at the state level on private right of action, I'm sure.
And I think that that is where we would rather have it as opposed to creating individualized rights of action for a number of cities and counties.
So again, There's a lot to unpack here.
I would need to think very carefully about some of the unintended effects of this, but also the subsection C exemptions in 728.030, I think, involve a lot of unpacking.
For example, we were talking about can discounts be given to people based on certain factors that are more or less than other people?
And initially in subsection C, it says that the restrictions applied at discounts so long as dot, dot, dot, they're of equal value to all who qualify.
But then in sub-sub-2, we see where tiered discount programs exist.
And it says that you can give different tiers of discounts based on prior purchase history.
I just frankly don't know how to parse that without being an attorney at this point.
And so I think we would wanna take this back and subject it to some more scrutiny before rendering a final opinion on it.
But I would rather have the private right of action discussion in Salem.
Elana Pirtle-Guiney
Thank you.
Unidentified speaker
Ms. Dalton.
Chair Pearl Guiney and members of committee, Amanda Dalton on behalf of the Northwest Grocery Retailer Association.
Unfortunately, we're also seeing this in a bit of real time— actually, not in a bit, we really are seeing this in real time.
Um, and but I can share a couple of things, primarily because it looks very similar to the language that City of Seattle is considering right at this moment.
And so I will echo my concerns that I have been echoing to that council for the last 3 months.
Specifically, the most concerning language in the proposed amendment before you is the inclusion of, um, a new C in 0.030 and this requirement that discounts are provided of equal value to all who qualify.
That's just not how loyalty programs and discounts work.
If you provide equally to all, you're lowering prices for all.
That's not a discount.
That's not a loyalty program.
That's not a membership program.
As we have said to that council, that is way— the way that these grocers stay in business.
They compete against each other.
Thank you.
That's how these large union stores compete against non-union stores.
So I will say specifically that language alone and the changes presented in this red line compared to the carefully crafted exceptions in Zimmerman 1 give us immediate significant concern that I imagine I could get much more for you once it's kind of thrown through the attorneys' reviews.
I can also flag for you, as you continue to go further on the enforcement and penalties, there's a massive new recordkeeping burden you're putting on small and 3 years attached to every single discount and coupon our stores provide is a massive recordkeeping undertaking, especially with a new private right of action with a $1 million cap.
It's exactly what we're looking at at the City of Seattle.
You put a million-dollar cap on every single product in our stores without giving us the opportunity to cure.
And again, I want you to keep in mind, this is language you're looking at.
Elana Pirtle-Guiney
Seattle—.
Unidentified speaker
City of Seattle is looking at the same.
Seattle's exempted small grocers under 20 stores.
That's not true.
You have no similar exception in what you're looking at right now.
So you are looking at a large private right of action on every single retailer, regardless of size.
And given that, you scroll down to the bottom, private right of action.
I read that very quickly as private rights of action are allowed to be pursued even if the city found no violation to have occurred in sub 1.
And then I see a different statutory minimum for a violation the city did find.
Lauren Johnson
So—.
Unidentified speaker
So that essentially is a double enforcement, allowing a private right of action, a civil lawsuit to be pursued against the grocer separate from a city finding.
And so I think that that's by far punitive.
And then lastly, and probably most significantly, you heard a lot from us about this earlier, it completely stripes out the preemption and makes this standalone and then run counter to anything that's then adopted at the statewide, putting your Portland area grocers at a significant disadvantage in complying with both at the same time.
And so we would ask you not to consider and adopt this amendment today.
Eric Zimmerman
Thank you, Chair.
Um, I'm gonna listen to the rest of the questions, but I appreciate— that's it for my questions right now.
Thank you.
Angelita Morillo
Chair, since this was about my amendments, can I respond to any of that or no?
And also, I do want to clarify that, um, committee is the place to bring amendments.
Elana Pirtle-Guiney
So, um, I was gonna say that Councilor Ryan was in the queue next.
Dan Ryan
I wanted to hear those that were in support.
Elana Pirtle-Guiney
Okay, so Councilor Morillo, you are—.
Dan Ryan
I just saw this.
Elana Pirtle-Guiney
You are next in the queue, so why don't we turn it to you, and you are welcome to ask any additional questions of our guests as well.
Angelita Morillo
Okay, so there was a lot said.
First of all, Mr. Salvaggio, really appreciate you guys working on this, and I think you're right, there is a lot to unpack because antitrust law is horrifically complicated, and I feel like me and my team became thank you.
I'm very interested in this area of policy.
Regarding Councilor Pirtle-Guiney's question on reference price and the Zimmerman 1 definition, it's per person.
So the quote is offered to a consumer.
Your retail price and your neighbors can differ, so there's nothing to compare yours to.
Every real baseline is defined against the public.
So in other spaces, it's advertised to the public on a regular basis.
New York says openly and actively offered to the public.
New Jersey's version says regular course of business.
It's the number before the discount.
So what we have here is that it's secret.
Nothing in the current underlying ordinance requires the retail price to be posted, disclosed, or recorded.
It exists only in the company's system.
So the baseline is whatever the retailer says I would also say that as far as the concern about small retailers, small and independent retailers don't have the complex data mining operations that companies like Kroger use to do individualized discounting and are at a substantial disadvantage to larger competitors that use data to set their prices based on what they know about you and your preferences as a consumer.
So the result of that is that small retailers either lose out or they feel compelled to sell through online platforms and third-party pricing services that price discriminate, denying their ability to independently price goods and services.
So the reason we are doing this is it does actually protect small retailers.
It's much better for them.
And we are pushing for the private right of action because Exhibit A, barred any private right of action, the city will not see most of this.
The overcharged shopper is the one with the receipt.
Seattle's mayor's office to its council said this is a violation that will have different levels of visibility.
So a private right of action as an accountability mechanism is an important part of this implementation process.
I—.
And I'm really happy to engage more with folks on Discounting and loyalty terms.
But to start, every comparator says the same thing.
New York says, quote, offered uniformly to any consumer.
New Jersey offered to— based upon those conditions, etc.
There's a lot of different states that are passing policies around this.
So what I'm offering is actually more in line with what's being done in other places as well.
Thanks.
Elana Pirtle-Guiney
Thank you, Councilor.
Michael Salvaggio
Sorry, was that a question?
Angelita Morillo
I'm not sure.
Elana Pirtle-Guiney
I don't— I think that was a statement, not a question.
Councilor, did you want a— was that a question?
Did you want a response from our guests?
Angelita Morillo
Um, no, no, I just— appreciation for you being here.
And yeah, I think that this is a lot to dig into, and I'm glad that we have committees to do that when—.
Elana Pirtle-Guiney
Okay, Councilor Ryan.
Dan Ryan
Thank you, Chair, and thank you, Councilor Zimmerman, for bringing overarching.
I have been following this, and what I really appreciated is how you're working with industry so that this could actually be implemented.
I like that it's proactive for consumers.
And so anyway, I was all there.
I did have a pause like others that just saw this in this meeting, and that that I add caution.
And so I appreciate that those who are closest to the impact are sharing their point of view on the item.
So I heard enough to know that I won't be supporting the amendment today, but I'm excited to support the overarching— the amendment that we're discussing now.
Thanks.
Elana Pirtle-Guiney
Thank you, Councilor.
Councilor Morillo, I'm going to go to Councilor Avalos.
She hasn't spoken yet.
Go right ahead, Councilor Avalos.
Candace Avalos
Thank you.
Okay, trying to parse out what my questions are.
Um, I think what I'm wanting to understand is I think where I'm getting myself confused, I'm like trying to react to the amendment, but then some of my question might be to the underlying.
So I'm just going to ask and see where it lands.
Okay.
Um, so as it relates to surveillance versus dynamic pricing, um, I guess I just want to better understand, uh, like what we're regulating, right?
So we've got It seems like there's 2 separate things, surveillance pricing and, and, um, dynamic pricing, right?
And so for the dynamic side, a retailer can change a price because of supply and demand, inventory, etc.
Um, so, and every customer is seeing the same price under dynamic pricing.
Um, so what is the consumer protection, I guess, rationale for the city limiting how frequently that I'm just trying to understand the in-a-day part and what that means.
Eric Zimmerman
That is a great question.
So I'm also— I'm going to answer it first, and then if staff, if I miss anything, please weigh in.
So the great question, because we all understand that I'm using the grocery store idea that something might have to move, right?
You got a product, it's time to move it.
You know, you've got like tomatoes need to be moved.
Moving prices makes sense.
Or that you're coming up on, you know, at the end of the day, you like to discount things to get them out.
Okay, got that.
Dynamic pricing in and of itself is not an overarching concern.
Dynamic pricing, while surveillance becomes part of the market, becomes a concern.
Meaning, if dynamic pricing occurs based on the use of surveillance, that's where I think we get into the possibility of the Of the unfair practice.
So by defining what dynamic pricing is and limiting the number of times a day that an item can change prices means that even if surveillance was present, even though we're banning it, if it was present, you're preventing that exploitative thing of dynamic based on the individual instead of dynamic based on the market.
And what we're trying to do is make sure that pricing is not based on the individual and the use of their PII when they walk through the store.
Thank you.
They are 2 different things, but they do go hand in hand.
The majority of this is really about the surveillance part, but you're hitting a kind of where the 2 items kind of match up.
And I will say, just in the public sphere, these words get used interchangeably quite a lot, which is part of why we've defined it.
Luke or Dan, you'd have anything to add here?
Luke Zach
Yeah, just to speak a little bit more around the why once a day and limiting how often.
You know, when we think of dynamic pricing, we often think of things yeah.
Like concert tickets going up when there's lower supply of it, or the cost of water going up when a hurricane hits, that sort of thing.
But we think that there's a possibility here where using that dynamic pricing could be used exploitatively if the retailers start to look at that surveillance information and know what kind of consumers, what demographics, which income levels are shopping when, and might be able to charge, you know, a different price from 10:00 AM to 2:00 PM when someone who has more flexibility or more income might be able to shop versus a price that happens after typical retail hours.
And so we wanted to make sure that we're not being overly prescriptive, but we're doing what we can to keep regular price setting practices and making sure there's not an extra loophole for exploitation there.
Eric Zimmerman
And Councilor, apologies, my name's Daniel Lukow with the Portland Bureau of Transportation.
Councilor Zimmerman's office, just to add.
Dynamic pricing, I think, we think of as purely external.
So classically that would apply to like the weather.
Like let's say like there's the sudden heat wave and they wanna apply and there's a desire to charge more for water or ice cream as an example.
That would be something that's not based on PII, that's based purely on external factors.
And so that's why there does need to be some—.
Yeah.
Element for the city to step in and prevent that from being exploited too.
Candace Avalos
Okay, so then to Councilor Murillo as it relates to your amendment.
So I, I think I understand your amendment as far as like your policy intent, but Maybe could you just tell me a little bit more about what you saw in the original ordinance that's making you feel these additional protections were necessary?
Just tell me a little more of that just so I can understand, and then I have some specific questions.
Angelita Morillo
Yeah, thanks for that question.
Um, I think the bones here are good.
It's just, again, this is a very meaty topic, and I am a little bit concerned that people, I think, Frankly, can barely define some of the things that we're talking about, and they're clearly ready to vote this through when they don't have a full grasp of this.
Like, I'm a little frustrated that we always talk about committees as being a place to talk through amendments, and then we're resistant to some of that updating.
The ordinance as written right now does not actually address surveillance pricing as it operates in practice.
That is the concern that I have.
Thank you.
So the extent— so to the extent that we're interested in engaging with that reality, we need to have additional discussions.
That's just the reality of it.
We're also at risk of moving out of alignment with what the state is working on right now.
And I think that we do need to be in alignment.
I think we either need to have like a workgroup here to really dig into some of the meat of this, or we need to try to join a state workgroup as well to make sure that we're influencing that policy.
But to rush through some of this without like a full understanding of it, lacking the enforcement mechanism is concerning to me.
What the amendment does is that it closes the loophole that actually allows discounting based on people's personal data.
We do have Attorney Matt Gander here as well if people want to ask a little bit more questions about some of the differences.
Candace Avalos
I was going to say that because you asked for him earlier and then he didn't come up.
So maybe could he come up so we could get some more information since he's saying he helped with drafting these?
Elana Pirtle-Guiney
So happy to have him come up if you have questions for him, Councilor.
I think it had sounded like Councilor Murillo had wanted him to, but then didn't ask during her time.
Angelita Morillo
So, okay.
Elana Pirtle-Guiney
Mr. Leander, welcome.
Candace Avalos
Thank you.
Okay, so the loophole— say one more time.
The loophole you're closing is you believe that as written without this amendment, it doesn't actually ban surveillance pricing.
I'm oversimplifying, but is that what I'm hearing you say?
And therefore, could I ask what is the legal change, how you're closing the loophole?
Matt Gander
Matt Gander, Deputy City Attorney.
I think the difference is whether or not you want to regulate the use of personal data in discount programs and the extent to to which you want to regulate that.
And just to get it out of the way, we've advised that these are both legally defensible and have the same legal risk profile.
So right now we're having a policy discussion.
Candace Avalos
Thank you.
Yeah, I think I'm also struggling just with the concept of like how we do this work in committee, right?
Because obviously Councilor Morillo is bringing forward a legitimate you know, policy suggestion to this policy, we're all digesting it and trying to figure out, you know, what is the ultimate, I guess, intent we're trying to accomplish with the policy.
And so, yeah, I don't know how to— I'm concerned about like just being like, I don't have any other like specific questions, but I want to talk this out and kind of hear where everyone's at.
If people are just going to rush through and just— I think we're going to go through the agenda items.
So I think I'm, I'm stalling a little bit because I'm like, can we have a discussion?
I don't want this to just be an up or down vote.
Like, I actually want to talk about the policy outcomes that both are trying to accomplish so that I can weigh where I land.
So I guess, like, as chair, I just want to know how can we facilitate this in a way that it doesn't just become let's just vote on it and be done with it?
Because personally, I'm very interested in the concepts that are being introduced in this amendment, but I want to talk it out and I want to hear what people's concerns are.
And I'd rather workshop that here in the committee where we're told we're supposed to.
So that's where I'm at.
Elana Pirtle-Guiney
Thank you, Councilor.
I don't think anybody has signaled yet where they're at on this.
So I think you've got a lot more folks in the queue still.
Hopefully we can have some of that conversation here.
I know I've got a couple things I want to float as well.
Councilor Morillo, you were next in the queue.
Angelita Morillo
Yeah, well, I don't think that's true because I think some folks said, I've heard from 2 people, so I'm done considering the amendment on the table.
And I take that very seriously in a policy discussion.
I do.
But I guess to clarify what Councilor Avalos is saying or questioning, to answer your question, the difference that we have in these policies is that differential discounts are individual pricing because when it's based on personal data.
So if you have a paper coupon that just says all veterans get this discount, everyone is getting that same discount.
But the difference is that when they are collecting your data and aggregating it based on different things, and you are only seeing that discount, you think that you're getting the full discount, but you don't know what your neighbor is getting.
So if you're a senior, So it's still differential even if it's based on some sort of identity factor like being a senior, being a veteran, that type of thing.
So that's the loophole that I'm trying to close with this amendment because this is still surveillance pricing.
It's just surveillance pricing within a loyalty program.
Elana Pirtle-Guiney
Luckily, Councilor Zimmerman, you're next in the queue.
Eric Zimmerman
So I think this is a really helpful part of the discussion in terms of how we crafted some of, um, the thoughts here, right?
So I am a veteran.
I will go to certain places and I will be given that discount.
The—.
What is important in that is that there are plenty of places that I go where I don't identify myself as a veteran, and so then they have no way of knowing that I'm a veteran.
And so I don't get that discount.
What I'm highlighting here is that I've chosen, right, if I go to Home Depot or Lowe's, those are 2 places where I seem to use my veterans discount.
I have entered into a program to receive that.
They are aware of that information only because I told them about it.
And I— so that's where I think that we're actually butting up against.
I don't think that that qualifies as surveillance because I supplied it.
I think that's a good point.
Now, if I walked in, as much as I would like to get a discount just because I walked in, I think it's kind of gross that they could know that I was a veteran without telling them.
And what my ordinance does here, and what the amendments— my— what the, what the ordinance does without amendments, is it protects against that.
And that is the nature of personally identifiable information, which is you, as any consumer, can choose what you Ask to participate in, but you shouldn't be put into that situation without your own, um, your, your own volunteering of that status.
And I think that that's an important part.
So for, for that, we discussed that quite a lot, which is why, why does this— why is this important?
And where I've landed as a policymaker is my ability to voluntarily take out the Safeway Rewards program, my ability to voluntarily say I am a senior even if I look old, My ability to voluntarily say I am a veteran is very different than automatic application.
And I think that's what at the heart of this is what we're getting at.
I wanted to— and just in terms of some of the advising and the conversations that we had, I'm just curious, Mr. Salvaggio, why you know, we've seen language from other states, and I'm kind of curious, we made some choices, you guys advised on some things.
What are some of the reasons that we didn't maybe look at or use the language from other states after our learning from them?
Unidentified speaker
Sure.
Michael Salvaggio
Thank you, Madam Chair, members of the committee.
That's a good question, 'cause obviously I think everyone here that's involved in this, yourselves included, have probably spoken with some out-of-state experts and people that have been working on this, as have we.
And we find it very, very important to gather those concepts, those thoughts, those experiences.
But then also remember that when we draft, we try not to cut and paste from other states because—.
Yeah.
As the effect of terms of art can vary widely from state to state.
And so for example, when I— and I could be wrong, but I think I heard Councilor Murillo refer to the word a consumer as opposed to any consumer.
Oregon's legislative drafting manual has instructions, as granular as it may seem, That expressly equate the word a in that particular circumstance to the— equate it to the word every or any.
And New York, as far as I can tell, does not have such an instruction.
And so that's just to highlight the fact that what means one thing in one state may not mean another thing in another state or another jurisdiction.
Thank you.
And so I see the current Zimmerman 1 draft as, I think, probably more solid, I would say, in terms of those protections.
In terms of loyalty programs as a—.
As a—.
As a workaround, we wholeheartedly agree that there needs to be some kind of lasso around what a loyalty program is.
We can't just have exemptions created and then call loyalty programs.
But to the extent that a consumer in Oregon, meaning every or any consumer, can walk into Fred Meyer, whether you're wearing a barrel and suspenders or whether you're strutting in with a diamond-tipped cane and top hat, yeah.
You're still going to get that same little red card.
And that's going to give you the same terms as anyone else.
Now, if I'm Mr.
Monopoly, I'm probably going to accrue sales that get to my $5 discount a lot quicker than if I'm not.
But the equity of terms does not necessarily guarantee an equity of outcomes under those terms.
But from our perspective and our opinion, as long as those terms are being distributed equitably and as long as we are basing these discounts from the kind of lodestone of the established retail price, which is what's advertised to consumers, I feel, uh, um, feel much, much more, uh, uh, confident in that, in that approach.
Unidentified speaker
And Chair Pirtle-Guiney and Councilor Zimmerman, if I may, um, so to date, 4 states have passed this.
Maryland, Connecticut don't take effect until October, so there's a lot of unknown about the policy before you.
Uh, New Jersey and New York, which is still waiting for its governor to sign, I believe as of Monday last week.
Um, you know, those are a lot coming online.
I think we also learn a lot from what hasn't happened.
Colorado's legislation was vetoed by their governor, specifically citing concerns about the impact on affordability coupons, loyalty programs, manufacturer coupons.
The state of California just spent 6 months on this policy, and on the eve before they adjourned, it died and did not advance to the Senate floor on a concurrence vote.
Specifically from the Democrat chair of the Privacy Committee, citing concerns around affordability and its impact on coupons and loyalty programs.
So this is not something that we take lightly.
It is something that we do very intentionally and thoughtfully.
So I would urge that similar caution and concern as you approach these issues.
And I will also share, Mr. Salvaggio and I are both at the Oregon table.
It has only had one meeting.
It is at 60 minutes of conversation.
There is no draft.
There is no specifics.
I know that Representative Chotson welcomes engagement.
I know that Councilor Zimmerman has had those conversations.
He's looking to what Portland is doing.
He's watching what we're doing.
And I think we'll take that into consideration.
And so urge you to continue to engage at that statewide level as well.
Eric Zimmerman
Thank you.
With respect to— there was a point made about advertised price earlier.
And just to note, you know, when we say I was going to say, we wrote things with attorneys.
Mr. Gander and Naomi Sheffield both worked on this with us.
This may be the most lawyered ordinance I've ever participated in.
So we also, of course, have gone through many machinations of this.
But I just want to note in terms of advertise that the advice that we got was that the removal of all restrictions that had to do with, quote, advertised was due to compelled speech First Amendment concerns.
And so that did come up.
I wanted to address that.
Thank you.
I am listening to these— to this discussion, and this is a large, large, large amendment.
And so this is a helpful conversation between all 5, and I will continue to do that.
And once complete, you know, decide where I'm at on it.
But I think the point we just heard, colleagues, is one thing I would like to remind you about with respect to what could happen at the city council level.
Thank you.
I hope that we act so that when the state acts, it can take up the mantle of this type of pricing in the service industry, not the goods industry, because we have done so good at the goods industry version that they can look at ours and say, okay, here are the couple of tweaks we would make at the state, but generally Portland got it right.
Because I think the more exploitative and already in existence is happening in the Uber and airline and hotel markets that we're not prepared to take action on, the state is.
I think that these can be complementary.
But also, I think when you hear about what will go on at the state is that it's very likely— we've seen already other states that I think have similar legislative bents— is that it may not come together, and then we will miss another full session where no action occurs.
And so I don't want to muddy that.
And I take those, those different state examples pretty seriously.
So I'll hold for now, Chair, and happy to answer other questions as they come up.
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor.
I am next in the queue.
And Mr. Gander, I'm wondering if you can help me out on this advertised price issue.
I have some thoughts on the broader amendment and approach here, but one piece that Councilor Murillo spoke to that stood out to me was whether the new definition, the new— what number is that?
New F, retail price.
The then current price kind of starts us off at that advertised price.
And Councilor Zimmerman just shared that you had had concerns over that language.
I'm wondering if there's anything that you can share about the meaning of then current price in the new F retail price definition to help me understand whether we're starting people at the same baseline that you're then getting some level of discount potential from, or whether that still allows for a different baseline for different consumers.
Eric Zimmerman
Sure.
Matt Gander
So if you look at the definition of surveillance yes.
In the ordinance pricing, it uses the phrase retail price, right?
And it establishes how or what one cannot do in calculating a retail price.
And so to minimize First Amendment risk, we have advised that you should focus on the terms of the transaction, right?
The, the price that is offered to a consumer And focus on regulating that, the, the actual economic transaction.
And maybe you could say that the advertised price is the price that's offered, but the language we've recommended is offered, which is consistent with First Amendment risk.
So if you look at retail price, that, that defines the baseline price that is offered to a consumer, as you've said.
And then the difference between the ordinances yes.
Is that Councilor Zimmerman has said you cannot do surveillance pricing in calculating that baseline price, but you can consider information particular to the consumer in calculating discounts and promotions and fees, right?
And Councilor Murillo's amendment says all of the things that you can't do in the surveillance pricing definition, Right, you cannot do when you're determining both the baseline price or the discounts or the fees that are charged to a consumer unless they fit under the exemptions.
Elana Pirtle-Guiney
But you didn't have the same concern with advertised price in the definition of retail price in the amendment?
Matt Gander
Which amendment are you talking about?
Elana Pirtle-Guiney
Uh, Morillo 1 defines retail price including the price at which a consumer good is advertised.
I know this is just a small piece, but it seems like it has a— if the definition means something different, it seems like that has an impact.
Angelita Morillo
What page are you looking at?
Dan Ryan
This is—.
Elana Pirtle-Guiney
I'm looking at F.
Unidentified speaker
Thanks.
Eric Zimmerman
Retail price.
Matt Gander
Um, I will say we were working on this definition kind of up to the deadline, so I think it's a question for the carrier about whether or not they want to keep advertised in the definition from a legal risk perspective.
Elana Pirtle-Guiney
Okay, so the risk is the same.
I'm trying to understand why the language in the underlying and it sounded like a concern was raised that wasn't raised in Morillo 1.
You had said that they were both equally fine, so I wanted to understand that.
So it sounds like you have that concern either way.
Matt Gander
I think commercial speech is defined as speech that proposes the terms of a transaction, and we advise that we should be regulating the price that is offered to consumers as opposed to regulating other types of speech that happens in the marketplace.
Elana Pirtle-Guiney
Okay, colleagues, I continue as we go through this debate to feel like there's this proposal before us which is looking at, um, upward pressure on prices, future technology, making sure that we don't go down a path that has not been entered here.
And then an amendment that looks at downward pressure and coupons and a current practice.
And Councilor Murillo, I'm really interested in us having a broader conversation about that current practice, but I'm also kind of interested in getting this ban on a future practice out the door as quickly as possible.
Um, so my current inclination Is to say let's move the underlying and let's come back to this question about whether there are problems with the current practice, which is a little bit different from the underlying, in the future.
I'm also looking at the definitions, and in the underlying personal data, right, defined as we've talked about So surveillance pricing means offering or facilitating the offering of a retail price for a consumer good that is based on personal data.
Restrictions: surveillance pricing is not allowed, right?
A vendor may not engage in surveillance pricing.
So we are in the underlying moving forward with I understand there are still questions about discount programs, but I, like I said, I keep coming back to the idea that that is a much broader topic, and we need to get this ban on surveillance pricing out quickly so that we're signaling to the legislature that we're doing this whether or not they do, um, as they move forward this year.
Thank you.
So that's where I currently sit.
We've got 2 more people in the queue, but I just, I want to note that, Councilor Avalos, you asked for a sense of where people are, and I keep feeling like these are 2 very different discussions, one on future technology that we need to put a stop to before it gets here, and one on current practices that we might want to delve deeper into.
Thank you.
And take the time to figure out if those current practices are actually making things more expensive under the veil of saying that it's making things more affordable, which is certainly a question that we should give some time and thought to.
Councilor Murillo, you're next in the queue.
Angelita Morillo
Yeah, thanks for that.
Can you clarify what you mean by things that are happening in the future?
Do you mean that the coupon discount thing does not apply I'm just a bit confused.
Elana Pirtle-Guiney
We've heard that the use of personal data in surveillance pricing is, as far as folks who have spoken today know, not happening in grocery stores in our area, but that the technology is coming online as we get the electronic pricing on shelves and things like that that could allow it to happen.
In the future, and that we therefore need to signal as quickly as possible that this is something that can't happen here.
Angelita Morillo
I see.
Elana Pirtle-Guiney
So that to me feels like a let's as quickly as possible say this cannot happen here.
There is this broader conversation that you've brought up, and I really appreciate you bringing it up, about whether consumer data-driven coupons are actually making things more expensive for people as opposed to more affordable.
For people, which I think we should absolutely take up and have broader discussions about as we think about affordability.
For me, that requires talking to a lot more experts and understanding that issue more deeply.
And I agree that committees are the place to dig in on issues like that.
But because I am also hearing that we need to signal as quickly as possible about surveillance pricing, I'm wanting to take on these 2 issues, which feel to me like distinct issues that could be but don't have to be done together.
Thank you.
Angelita Morillo
Okay.
Thanks.
That's helpful to understand where you're coming from.
I agree.
I think we, you know, I do want to make sure that it doesn't come to Oregon and then we're backtracking afterwards.
But I do want to clarify a few things that I heard today.
So under both the underlying ordinance and my amendment, you can still join a program or identify as a veteran or another protected class and still be able to participate in the program.
Okay.
Under Councilor Zimmerman's, once you do, the store can use what it knows about you to decide how big that discount is.
That was reiterated by our attorney, Matt Gander, who worked on both of these.
Under ours, under our amendment, everyone who qualifies gets the same discount.
So that is the first instance of using personal information to give discounts.
Okay.
Different prices.
That is still surveillance pricing.
It's just that it's hidden within the loyalty program.
So the FTC and other parties already refer to this as surveillance pricing.
And I think that you're right.
What we are doing here today and what passes through Portland City Council is setting a really important precedent for what the legislature does moving forward.
But we also can—.
Thank you.
Accidentally signal to the legislature that we are willing to pass a surveillance pricing policy that is supposed to ban it, that actually has a huge gaping hole and allows it to move forward anyways, under the guise that we're doing something for Portlanders or for Oregonians and making things better for them.
So we don't gain a lot by getting this out the door, especially rushing this through committee.
All we do is signal our inability to have a serious conversation about some of the loopholes that are still Very present in this policy.
And the public, they're not going to be served by us saying that we banned something if we can't enforce it.
So if we don't have any enforcement mechanisms in this, then the point is moot either way.
So I really care about this policy.
I—.
Zimmerman knows I texted him very excitedly when I saw he was bringing this forward.
And I'm worried that if we don't address these loopholes, it's not going to do thank you, Councilor.
Elana Pirtle-Guiney
Councilor Avalos.
Candace Avalos
Okay, um, I think where I'm landing is I share a concern around the loophole, and I don't Obviously, Councilor Morillo has brought her version of how to close that loophole, and that's what we're considering.
I'm trying to understand maybe from Amanda, based on how you were reacting to it at first, like, it seems like both policies allow for loyalty programs, allow for some kind of specialization based on yes.
But the difference being that under the current underlying, they could also, on top of that, the grocer, I guess, on top of that, could add more specialization to that loyalty program based on their personal data.
This is how I'm interpreting what Councilor Morillo is saying.
So I guess, can you explain what is your concern about that specifically?
Because it's, you know, ultimately, if we're trying to ban surveillance pricing— and I think the other thing I'm getting confused about is like, this is about in the future, because it's like, there's all this technology.
So what, the grocers haven't used it?
Some of them are using it?
I can't remember.
I'm sure you said the history.
I just can't remember right now.
But— yeah, so the but yeah, so why don't we start with the first question, which is just what is your— why are you against us making that more clear that surveillance pricing or whatever can't be used even in loyalty if it already has some protections?
Both of them have protections for loyalty programs.
Unidentified speaker
Yeah, um, and Chair Pirtle-Guiney and Councilor Avalos, appreciate the question.
So, um, a couple things.
One, I think as you heard from the definitions in these policies are really important and highly technical, and so like every word does matter.
And it is very confusing because I think the other piece too to think— keep in mind is, as you had said earlier, this is regulating 2 different things, dynamic and surveillance, and it's also regulating grocery and all retail, including online retail, of all consumer goods.
So we are not just talking about food, right?
Elana Pirtle-Guiney
Yes.
Unidentified speaker
So it is really massive.
So how each of these apply to each of those buckets, and I'm just here on behalf of grocery retail, and so you don't have a broader retail perspective on it.
So I can tell you specifically for grocery, and maybe this is where some of the confusion comes in.
Part of the problem is your definition of personal information includes purchase history.
So if you think about consumer behavior or even inferences, right, about a consumer's purchase history.
So for example, today a grocery retailer may share purchase history data with a third-party manufacturer like Coca-Cola because we know that Mr. Salvaggio drinks a lot of Diet Coke.
He hasn't purchased Diet Coke in a month, and so he may need a coupon for $2, right?
And so this is, I think, where the grocery industry looks at this issue a little bit differently.
We support prohibiting using personal information to raise prices, but we absolutely use purchase history in our loyalty programs.
It's the core of those loyalty programs to provide our consumers with coupons and discounts that are relevant to them and their shopping behaviors.
And so that's maybe where the two kind of confuse the issue.
So we're not using your personal information, we're not using your address, we're not using your income, we're not using all these horrific kind of examples and worst-case scenarios to drive prices.
But we are using your purchase history and sometimes household information to build those loyalty programs.
And again, I do want to say those are loyalty programs consumers opt into.
And I'll just make a plug, Oregon has some of the strongest consumer protections in the state, including the Oregon Consumer Privacy Act, which was just passed by the legislature a few years ago that actually lets consumers opt out of their data being sold or shared.
And so that's a really significant law that not every state, including Washington, doesn't even have, that was passed that does apply to grocery stores and our loyalty program.
So that consumer data has a ton of protections wrapped around it.
I don't know if that helps.
Candace Avalos
Well, I guess then a follow-up is what I'm understanding in Murillo 1 is that you still can use purchase history, it's just more narrow, right?
Like it's the tier thing, right?
So maybe can you help me understand that, Councilor Murillo?
Because it sounds like you still are allowing for purchase history, it's just that definition of like personal data that maybe we're grappling with.
But isn't the intent that they still could use that?
So So if I buy a lot of cat food, I could get a coupon for cat food because that's my history.
But yeah, can you just help me understand that better?
Angelita Morillo
Yeah, that is exactly correct.
You have it right.
I do think the, you know, I do want my colleagues to consider too that the Oregon Consumer Privacy Act that protects some of the consumers under Oregon state law was directly fought by the person who is lobbying us on this surveillance pricing ordinance right now.
So let's not pretend that that context does not exist when we talk about who's presenting before us and who is giving us a policy that may have a loophole for giant retailers.
Unidentified speaker
And Chair Pirtle-Guiney, if I may just weigh in and encourage the record to go back, I actually supported it and was on the workgroup and served on it for 2 years under Attorney General Ellen Rosenblum.
But yeah, details matter, and we're not going to support everything that's put on the table.
I will say though, we disagree with the premise that you outlined in terms of the Councilmember Herbold.
I think the councilor's comment about the Morillo amendment just narrowing it, I actually think it will eliminate it.
And it's that application of equal to all.
And because that's just not the way loyalty programs and coupons work, it's not provided equally to all.
It is specific to your purchase history.
And so those programs are customized to the consumer.
And so I understand there's a philosophical difference in terms of wanting us to offer discounts or lower prices to everyone on every product on our shelf.
It's just not how grocery, and I think significantly to this policy, because it's much different than Seattle.
Seattle is just about grocery.
This is also about retail.
So equal to all products on your shelf online and at the brick-and-mortar stores is just very, very different.
Candace Avalos
Why, why are you saying that it would be eliminated?
Is it because it would be too hard to implement and so you would choose to just get rid of it entirely, or is it because there's some actual barrier that would mean you could not implement a loyalty program under these conditions?
Unidentified speaker
Yeah, I think probably the easiest way to understand it is It's the same way if somebody's, say, campaigning and you're using direct mail and you have a limited budget and you're going to talk to voters that are likely to turn out.
These manufacturers and retailers have similar limited budgets, and I want somebody that's going to keep coming back to buy Diet Coke.
Same thing, one of the examples that's come up in some of the other communities is there was a comment that this doesn't impact small grocers or small businesses, and it's actually not at all accurate.
One of the ways that we target is where it actually lets competing products so if you're a small coffee producer and you want to compete with Starbucks, maybe you offer a $5 discount on somebody who buys Starbucks every month or every week.
The only way you know that is based on their purchase history.
So again, it's that equally applied to all philosophical difference.
Again, it's just not how it works.
Budgets are limited.
We have to target based on what the consumer wants and where they're going to come back to.
Elana Pirtle-Guiney
Thank you.
Councilor, did you have anything additional?
Candace Avalos
Let's see, let me look.
Elana Pirtle-Guiney
Then it looks like Mr. Salvaggio may have a response to your previous question if you're interested in that.
Candace Avalos
Sure, sure, go ahead.
Michael Salvaggio
Thank you, Madam Chair, members of the committee.
I just wanna say very quickly to take a few steps back from the minutia of the loyalty programs and just recontextualize.
These are programs That are designed to get union store shoppers continuing to come into union stores.
And I wanna just reemphasize how important that is for us in that we depend on that predictability of customer inflow for not only revenue that we expect to share in, but also—.
Yeah.
In terms of staffing and shifts and whatnot.
These are fundamental issues to our members, and I would not want to see those programs harmed inadvertently because we're trying to sew up a too tight ordinance here.
I also just have to say, For the record, in good conscience, my colleague here and I, we agree sometimes, we disagree sometimes, and when we agree, we work together.
When we disagree, we fight like cats and dogs.
But I have never, ever known her to misapply or mislead anyone that she's been in front of, including myself.
And I, just like I would expect the same courtesy, I don't feel that it's appropriate to make those suggestions.
Eric Zimmerman
Thank you.
Candace Avalos
Councilor, anything further?
I'll leave it at that for now and hear what others say.
Thanks.
Dan Ryan
Okay.
Elana Pirtle-Guiney
Colleagues, I'll note that it is 3:50.
We're a little past time on this, but I want to make sure everybody in the queue is able to ask any additional questions before we move to a vote.
Councilor Zimmerman, did you have anything further?
Eric Zimmerman
Thank you, Chair.
I thought it might be responsible to kind of just discuss a little bit about philosophy and how I approach this.
And we certainly have been working on this for so many months that we've gone round and round.
Many of the issues that we're discussing today are things that my team and our conversations with our attorneys and with advocates We've landed here because I largely believe it's not our role to, as a city, do anything that, even if you pull the thread a little bit, is price setting, right?
That's where I think that the market— if you're a third-party delivery app, for instance, I think that you have a relationship with your consumer that is important, that you get to say if you're a $5 delivery fee person or a $25 delivery fee person.
I think that's a good point.
I think that that's fine.
I think that being set based on PII is where I'm trying to involve the city.
But being able to have baseline prices, being able to have loyalty programs, being able to ensure that whatever service is being offered, whatever good is being offered, is that it is based on that company's market assessment and not on, on PII and surveillance.
I think that's fine.
Those are all achievable in the underlying.
The, um, you know, we, we did publish this original document.
It was supposed to be heard on, on August 11th.
Um, in that time, you know, we continued to work on how do we make this better, and, and that's what you saw in Zimmerman 1.
It was a single paragraph add and a couple words later that was changed.
I'm cautious about the amendment, Maria 1, as it's been proposed.
It's largely a rewrite, and that, that is giving me a little bit of heartburn in terms of reacting to it.
And I do think that it gets to the heart of what we largely, in our discussions and what I'm trying to protect, it actually is interrupting that protection of the loyalty programs and the application of those protections.
And I do think it gets closer to what I think is an unintended consequence of some price setting or elimination of what we would consider the market today.
And so for those reasons, you know, this has been a helpful conversation, but this is a massive amendment that I won't be prepared to support today.
But I do think that this was I think that this was a worthy— and I want to thank you, Chair, for giving it so much time, because this was a worthy conversation on a meaty topic that is moving faster than most legislative bodies can move.
And so I think that that is the responsible action, and I agree with you in terms of getting, getting the original out there.
I appreciate, but I do disagree with some of the items that were laid out in the second presentation about what what does that mean?
I think it's important to distinguish what Maria 1 does versus, versus the underlying, but they're all important points.
There's a philosophy in how we draft legislation here that I think you're seeing my style come out, which is minimal in order to be clear versus verbose in order to hit every angle.
And I think setting a tone in our legislation is for what is and is not acceptable in Portland was the goal from which which I wrote this one, and I recognize that we are approaching it slightly different, but I believe everybody here has a similar goal in place.
And for that, I do appreciate this conversation and everybody who's weighed in.
And for this amendment, I, I will pass on it today though.
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor.
Councilor Morillo.
Angelita Morillo
Thank you for that.
Um, in terms of application of the law, There is no room for the debate.
This policy will either solve the problem or it will not.
And I want to say that my amendment again does not touch the loyalty programs.
I can't say that enough.
It still permits discounts based on purchase history.
I'm going to read you a direct quote from the amendment in case it's unclear.
Thank you.
Discounts offered to a subset of rewards program members based exclusively on prior purchase history.
Tiered discount programs may not consider information about consumers' price sensitivity or any personal data beyond what is necessary to identify the consumer as eligible for the tiered discount.
So if we care about the exact type of inferences and data exploitation that the FTC is talking about, That has to be included.
And to say that this type of data is not being collected on people is inaccurate.
This has been very extensively studied and it is being used against people.
So we added the additional words not for the sake of being verbose or for making it overcomplicated or difficult to comprehend or to have a gotcha on my colleagues.
I was told committee is the place to bring amendments.
I think that's a good point.
Because I don't want to bring it up full council and catch everyone by surprise and then be, be in trouble for that too.
I brought it because I actually really care about solving this problem and I'm excited about this policy.
And regarding the idea that we should ban this now and then fix the discount issue later, a differential price and a personalized discount are the same transaction described from 2 ends.
Yes.
If you pay $4.99 and your neighbor pays $4.49 for the same item because of your data, that's differential pricing, whether the store got there by marking you up or by marking your neighbor down.
The store chooses the label, and it will always choose discount.
That's why ban differential pricing now, discounts later bans nothing now.
Under Zimmerman 1, the retail price So any differential delivered as a discount is outside the ban by definition.
Every documented case is delivered by that— is delivered that way.
Kroger's coupons, Instacart's shifting original price, DoorDash's personalized promotions.
Seattle's mayor's office was asked whether a $1 discount to one shopper and none to another is functionally a form of individualized pricing.
I think that's a fair question.
Pricing, even if the company calls it a discount?
And the answer is that yes, it is.
We should continue to have the discussion.
And if we're not willing to have one more hour to discuss this, to really solve the problem, I think that's a shame because I think this is a really cool policy.
I'm excited about the people that brought this forward.
I support but I also don't wanna support a policy that says it's gonna do something and leave a bunch of loopholes that doesn't actually protect the people that we claim we're trying to protect.
I also wanna remind people that we're in committee.
This is a really big issue for a lot of people, and we have 2 invited testimony folks up here.
We don't have exactly like a broad consensus from the public about whether or not they want this to include the loyalty discounts as well.
And I think that that's a loss and that's not great for our policymaking.
So I understand, I can see the writing on the wall.
We're probably gonna push this through committee without doing our due diligence, and that's fine.
But we are leaving a huge hole in this policy, and I think that's a damn shame.
Elana Pirtle-Guiney
Thank you, Councilor.
Councilor Ryan.
Dan Ryan
Yes, thank you, Chair.
It's time to vote.
I call for the vote.
Elana Pirtle-Guiney
Okay, um, we have one more person in the queue.
Councilor Avalos, did you want to speak or can we move to a vote?
Councilor Ryan, might I suggest that you move to not, um, that you move to close the queue so that we don't have to vote on voting, which I think would take longer than letting Councilor Avalos speak?
Dan Ryan
That's the chair's prerogative.
I just wanted to move this along.
We're in a circle mode at this moment.
Candace Avalos
Great.
Elana Pirtle-Guiney
Why don't we close the queue and we will move to a vote after Councilor Avalos.
Candace Avalos
Yeah.
Eric Zimmerman
Hmm.
Candace Avalos
Well, I'm actually a bit disappointed because I was looking forward to hearing what you were going to say.
So I thought you were going to offer your perspective on the way you're moving.
Dan Ryan
I did earlier.
I'm sorry you didn't hear it.
I made it really quick.
Candace Avalos
No, I heard, but I was you know, I just thought you were going to add more to that.
So, um, okay.
Well, um, yeah, I think I'm, I'm feeling very conflicted about this.
I definitely, um, agree with the intent here of, um, Councilor Murillo's amendment, and I'll— I will vote to pass it, um, because I think that it's something we should keep discussing, um, but it doesn't appear it will.
Um, and so I think I guess I'm just unsure how I'm going to feel when it comes to council because I think there are some serious gaps that, um, Morillo one identified that I'm, you know, for the sake of the community, that those gaps, closing those gaps will help.
Um, I'm very interested in discussing more.
So yeah, I guess, um, and you know, if this does not, this amendment doesn't pass, then I would encourage Councilor Morillo to bring it I think it's important that we bring this back to full council so we can have a broader discussion, because I do think that other councilors might take interest in it.
I think the discussion we're having is fruitful, and I think we're all— we all share a similar intent here.
We just obviously feel like we can go about it a different way.
So thank you, Councilor Murillo, for bringing that forward.
I know it's difficult to propose such a big amendment, and, you know, the way that we've structured our work at council just makes for some of this disconnectedness, which is really frustrating for us because it's just like we got to work in committee and then committee's not enough and then we go to council and then people don't want to talk there.
And it just feels like there's always a blocked door instead of an open door, and that makes policymaking hard.
So I think that's just my general feeling about how this has gone, but I plan to support it and eager to see where the discussion goes at council.
Unidentified speaker
Thanks.
Dan Ryan
Thank you.
Elana Pirtle-Guiney
Thank you, Councilors.
Colleagues, I just want to note that we've had a significant amount of workshopping on this.
We've had a significant amount of discussion.
We are doing the work that we are supposed to do, and if this amendment fails, it's not because we've not had the discussion over it.
I understand that there are concerns with the process of this body, and that's something that I think we can work but I hope that we don't continue to use committee as a platform to launch concerns without any work of the body to address them.
I personally think that the process we have of committees and a full council vote is important, and I appreciate the conversation we've had today.
Thank you.
Because it has aired for me an issue that I might be interested in us taking up in the future, a really important one that although I don't feel we have the experts in the room today to address, and although I hope we can move something forward today, whether the underlying or an amended version depending on how you all vote, that I think needs to be moved forward today.
There's important conversation that has been had and issues identified.
Wendy, could you please call the vote on Morillo 1?
Unidentified speaker
Thank you.
Yes, may I ask a procedural question?
Morillo, did you intend to supersede Zimmerman 1, or is it inclusive of Zimmerman 1?
Elana Pirtle-Guiney
I believe—.
Angelita Morillo
Didn't Zimmerman 1 pass first?
Unidentified speaker
Yes.
And so but if there's conflicts between the two, if your amendment is of the original ordinance, then yours would supersede Zimmerman 1.
Otherwise, if you say it's inclusive of Zimmerman 1, then we'd reconcile those differences.
Elana Pirtle-Guiney
Gotcha.
So when they conform it, I believe the one conflict would be the definition of F. So are you intending to capture the other changes within Zimmerman 1 but supersede Zimmerman 1's F with your F?
Angelita Morillo
Yeah, that's fine with me.
Unidentified speaker
Thank you so much for clarifying.
So motion to amend the ordinance 2026-308 as shown in Murillo 1.
Murillo?
Angelita Morillo
I, I, and I believe I heard Mike say that he was interested in taking this back to his attorney, so I'll be sending the language to them for further discussion for full council.
Unidentified speaker
Zimmerman?
Eric Zimmerman
No.
Keelan McClymont
Avalos?
Candace Avalos
Aye.
Unidentified speaker
Ryan?
Dan Ryan
No.
Unidentified speaker
Pirtle-Guiney?
Elana Pirtle-Guiney
No.
Unidentified speaker
The amendment— oh, sorry, uh, fails with, uh, 2 aye votes and 3 nay votes.
Elana Pirtle-Guiney
Okay, colleagues, that moves us back to discussion on the underlying, which I think we have pretty substantially discussed in discussing the amendment, so I'm hoping we can move to a vote there.
Pretty quickly so we can move to a break.
Zimmerman.
Eric Zimmerman
Thank you.
I— the reason I got in quickly was I do think we've had largely the discussion.
I want to lift up what is, I think, going to be a good action today.
I hope that this has support.
I think that a discussion on an amendment is a worthwhile endeavor almost all the time, and we have done that now for a couple of hours.
And I don't want that tone to override what I think is an incredibly positive step for the City of Portland, for the consumers of Portland, for every shopper in Portland and setting an example for other states, for other cities, for this, for our state, because the exploitation of one's personal data as technology makes that easier and easier, as we know that there are companies who are pitching retailers of all types that they can come in and tell a retailer, we'll tell you more about your consumer than you could ever know and you can set prices based upon that.
I think us saying no thank you to that and setting a clear example and a clear way of doing business in Portland is the right step.
So I want to appreciate everybody who's helped us work on this.
I want to appreciate my team in particular who helped us go through the eaches and for a healthy conversation.
And I look forward to defending this at City Council so that we can protect Portland consumers.
Thank you, Chair.
Elana Pirtle-Guiney
Thank you, Councilor.
Councilor Morillo.
Angelita Morillo
Thank you.
With regards to process, I do have to address that we had a brief presentation last committee, not really any time for discussion.
This was our big discussion committee hearing.
We have had 2 hours to discuss antitrust law, which is one of the most complicated areas of law, frankly, because we're talking about technology, and we're talking about a very complicated legal area.
And you guys made the algorithmic price fixing ban go through committee 3 separate times.
I had to return it back once because, again, very complicated legal area and we had to protect the city for it.
I heard from Mike Salvaggio up there that he was interested in the amendment and wanted to bring it back to his attorneys and that they needed to review a potential option.
So to me, that is not that is not sitting with the amendments.
That is not processing any of the language.
But we're just moving it out of committee as I thought we would.
That's fine.
What this ordinance leaves on the table is essentially creating a policy that is the same sticker with different discounts.
So to a consumer, this is how Kroger, Instacart, and DoorDash actually do it.
There are different fees.
Premium fees are carved out of the retail price and a personalized mandatory the ban says that a specific consumer account or device, not a group.
Pricing tests.
And, and just like a lot of other holes that are in this policy, so anything the city can't see because there are no records, there's no private suit, $1,000 total for a first offense and nothing if the company stops within 45 days.
Elana Pirtle-Guiney
Thank you.
Thank you.
Angelita Morillo
So if we are trying to signal to the legislature that we are serious about banning surveillance pricing at the city level, unfortunately what we are signaling by moving this forward today without any changes is that we are okay with moving forward a more symbolic policy that does not actually remove the loopholes that would actually stop this.
And I'm really sad about this because I think it's a really cool idea and a really important issue.
Thank you.
But because of that, I had to explain myself pretty strongly to the public who's watching this because I will be voting no and I don't want it to be misconstrued why I can't support this today.
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor Morillo.
Seeing no one else in the queue, Wendy, could you please call the roll?
Unidentified speaker
Thank you.
May I have a motion?
Second?
Elana Pirtle-Guiney
I believe— Didn't we—.
Eric Zimmerman
I'll move it for adoption of the full council.
Elana Pirtle-Guiney
Had a motion and a second from Zimmerman and Ryan.
Unidentified speaker
I think that was the amendment.
Thank you so much.
Elana Pirtle-Guiney
Oh, I apologize.
That was Zimmerman 1.
Candace Avalos
Okay.
Unidentified speaker
Morillo?
Angelita Morillo
Regretfully, no.
Unidentified speaker
Zimmerman?
Aye.
Avalos?
Candace Avalos
Yeah, I feel conflicted about this vote.
Um, I feel unsatisfied by where we're landing and feel there are some important gaps.
Um, my vote is symbolic because it's going to pass out.
I'm going to vote yes, but, uh, I reserve the right to reach out.
I want to talk to the stakeholders and see how we can improve it, um, as it's on its way to council.
So I'll vote yes now, but Ryan?
Dan Ryan
Aye.
Unidentified speaker
Pirtle-Guiney?
Elana Pirtle-Guiney
Aye.
Unidentified speaker
The motion to refer is— the ordinance as amended is approved.
Elana Pirtle-Guiney
Okay, colleagues, we are going to take a 10-minute break.
We have 2 items left on the agenda.
I will be talking to our colleagues during that break to figure out how much time they need and if we may need to move one of these items when we get back.
I will make I just want to make a quick announcement about what we're still moving forward with today so that anybody here for either agenda item 5 or 6 has as much notice as possible.
Please be back here at 4:17.
Thank you.
Thank you all for being back.
We are going to go ahead and reconvene.
Um, Councilor Zimmerman believes we can get through the next item which his office brought forward quite quickly, so we are going to move ahead assuming that we will complete agenda item So I'd ask that everybody who is here for both of those items stay.
Wendy, could you please open agenda item 4 for us?
I'm sorry, we renumbered 5 and 6.
Agenda item 5.
Unidentified speaker
Yes, thank you.
Item number 5, document number 2026-286, Protect Portland Firefighters from Job-Related Risks.
Elana Pirtle-Guiney
Thank you.
And this again comes from Councilor Zimmerman's office.
Councilor Zimmerman, would you like to introduce the item?
To introduce this item before we hear from our fire chief.
Eric Zimmerman
Thank you.
I'd like to just open this item by noting that occupational cancer is the number one killer of firefighters in the United States.
Firefighters are nearly 10% more likely to develop cancer and almost 15% more likely to die from cancer than the general public.
PFAS chemicals have historically been added to protective gear to serve as a critical moisture barrier.
While advances in material science have been made and the amount of PFAS reduced, protective gear remains a source of carcinogenic exposure.
Portland firefighters need gear that shields against hazards encountered on the job and not gear that adds to a known cancer risk.
Unfortunately, PFAS-free fire turnouts are not yet commercially viable.
However, to ensure that there is a quick transition once there is a viable option, I'm seeking to establish the PFAS Replacement subfund within the Portland Fire and— excuse me, Fire and Rescue Fire Capital Fund, so we can offset large one-time costs outside of the normal 5-year cycle of turnout replacement for Portland Fire.
With that, I wanted to invite our chief to present to us and describe a little bit more about the problem we're solving and what we'd hope to achieve.
So thank you, colleagues, and Chief Johnson.
Lauren Johnson
For the opportunity to be here with you today.
For the record, I'm Lauren Johnson, the Fire Chief.
I want to thank Councilor Zimmerman for your advocacy and to let you all know that this resolution aligns with Portland's core values.
I'll give more specific details about PFAS in the remainder of the presentation, but I wanted to highlight that committing to a change that improves firefighter health and safety and moves toward more sustainable, environmentally friendly product is fiscally responsible, collaborative, and simply the right thing to do.
Next slide, please.
So I'll start by sharing a broad overview of PFAS and how they're impacting firefighters.
PFAS are a large group of human-made chemicals.
By some definitions, there are more than 3,000 different types, and they've been around since the mid-20th century.
Thank you.
They're commonly used on products that we all encounter in daily life.
They're used as waterproofing and stain protection coatings.
They're sometimes referred to as forever chemicals because they don't readily break down in the environment or in the human body.
And because they've been so widely used for so long, we encounter them everywhere from the goods on our grocery store shelves to the products that we use and we wear and in the soil and in our water.
And unfortunately, we know that firefighters have had additional routes of PFAS exposure.
Firefighting foam is a product that we spray through hoses to help extinguish fires, and the foam used by most fire departments across the country has historically contained PFAS.
Recently, manufacturing requirements has removed PFAS from the foam.
That's been phased out, but it's been for a long time a primary source of groundwater contamination.
And current firefighters and retirees have been exposed to a significant amount just in the course of our daily duties.
Some occupational exposures are not currently preventable.
They occur during fire and other hazardous materials emergencies.
And so during and after these active fire responses, we make every effort to mitigate these hazards.
And I'll explain a little bit more about that in the next few slides.
And finally, PFAS like Councilor mentioned, has been historically present in the turnout gear that we wear, and this is because it is a durable water repellent that's applied to the outer shell and the inner layers of firefighting gear.
And as you can imagine, it's critical that we provide turnout gear that can let firefighters' body heat and sweat move away from our skin, but does not let in superheated water and moisture or contaminants like blood and chemicals.
Next slide, please.
So these slides have given you an idea of the challenge that we face when it comes to balancing firefighter health and wellness against the dangers associated with meeting our mission of extinguishing fires and preserving life and property.
Councilor Zimmerman's resolution notes that the startling fact that firefighting has been categorized by the International Agency for Research on Cancer as a Group 1 carcinogen.
So that's the highest risk category, and it's the same category that tobacco smoke is in.
Wow.
Firefighter cancer rates have been increasing throughout my career, and fire departments are making big efforts to mitigate the hazards of occupational exposure.
These efforts include cleaning our apparatus and gear after every fire and wearing our breathing apparatus for much longer.
And they also include doing everything we can to encourage manufacturers to make changes to, to the chemical composition of the tools and the equipment that we use.
And the change in firefighting foam is one example of this.
Next slide, please.
Another manufacturing change that firefighters are advocating for and that this resolution supports is to completely remove PFAS from all layers of turnout gear.
The waterproofing properties of certain PFAS currently play an important role in protecting firefighters from contaminants, especially petroleum products and bloodborne pathogens.
And there's also certain types of PFAS that can withstand exposure to harsh chemicals and temperatures and must be superheated before they begin to degrade or off-gas.
So as you can understand, these qualities meet a really specific need for firefighter protective gear, and that also explains why it's so hard to find a suitable replacement.
Next slide, please.
Maybe.
There we go.
So it's important for you to know that we're in the best type of protective gear, the best suited gear for us in our working environment right now.
And that really means that we assess that— what we do is we take the types of risks and conditions that we're exposed to, and then we choose appropriately matched levels of protection when it comes to turnout gear.
We know that our current turnout gear contains PFAS in one layer, It's completely encapsulated, and when this particular setup of bunker gear is studied, we do not see firefighters becoming contaminated with that type of PFAS.
However, we still maintain the importance of keeping good hygiene practices in place so that the gear and our members get clean after each fire.
And you can see here on this slide that the professional unions, both of firefighters and fire chiefs, have formally called for turnout gear manufacturers to develop gear that's completely free of PFAS.
And so we're watching as the textile advancements take place so that we can be ready to buy a new product once safety and performance standards are proven.
Next slide, please.
Oh, goodness.
It's like we've got a gremlin in the slides.
So there we go.
Thank you.
This slide describes our current cost and replacement schedule.
So each set of turnout gear is approximately $4,500 in today's dollars, and we usually buy about 175 sets each year.
There is a mandatory retirement of all turnout gear 10 years after the date of manufacture, and with our rates of wear and tear, we usually get about 7 to 8 years out of a set.
Portland has accounted for and planned for these purchases a few different ways, but what's relevant for today's conversation is the idea of the substation.
Okay.
The resolution that's before you establishes a PFAS replacement subfund that would allow general fund underspend to be saved in preparation for a wholesale transition to PFAS-free gear.
Next slide, please.
So I appreciate the work that the councilor's office did to carefully craft this resolution so that it does provide for a responsible path forward.
We're committed to giving the city administrator annual updates on the timeline, challenges, and projected costs for the transitioning to PFAS-free gear.
And we've emphasized that there's not currently enough data to show that there's a suitable alternative for Portland Fire to change into.
We want to be sure to avoid what's known as a regrettable substitution, which is when a hazardous substance is replaced with another that is equally or even more harmful.
And that usually happens because of an incomplete hazard analysis or regulatory gaps.
An example that many of you may remember is with BPA replacements.
So when this move happened, bisphenol A was replaced with bisphenol S and bisphenol F, and then the science showed that those alternatives really had similar health hazards compared to the original substance that they had replaced.
So obviously a premature move like that would damage trust be expensive to overcome, and could result in worse safety outcomes for firefighters.
And that leads me to the last point on this slide, which is that I believe this resolution has the right balance of direction and patience so that Portland Fire is prepared to transition when PFAS-free gear is proven and readily available.
And if it'll give it to us, how about the next slide?
There we go.
Okay.
Okay, so I want to close by summarizing what this resolution does.
It affirms your support for Portland firefighters' health and safety.
It directs us to monitor the science and changes associated with PFAS-free turnout gear.
It requires a change to PFAS-free gear once it's proven to be safe and effective.
And it establishes the subfund to help spread the costs of this transition out over several years, provided that there is underspend.
Thank you.
And finally, it has an accountability piece built in where annual reporting is required from the bureau to the CA and then from the CA to council.
Next slide, please.
So that's the last slide for me.
And I want to thank you all for your service here on the committee.
I don't usually get, get to see this particular group, but thank you for that and your service to council overall, but also specifically for calling attention to firefighter health.
Thank you, Chief.
Elana Pirtle-Guiney
Councilor Zimmerman, did you have anything to close with?
Eric Zimmerman
Thanks, Chief, for spending your time with us.
You're a very busy person, so I appreciate it.
Colleagues, what we're really seeing here is the department has, once this technology becomes available, the ability to make those regular new purchases each year, and that's going to save us a lot of money.
Each year or so as things expire.
What we're really talking about is, can we carve out the ability for them to make a larger purchase so that it's, uh, when that, when that technology is available and the garments are ready, so that we're not in a 5 to 7 year cycle of waiting before everybody in the department has a new set of turnouts?
And so that's really the meat of what we're talking about, and it comes from savings within their own department year over year.
And So I appreciate your entertaining of this resolution.
Elana Pirtle-Guiney
Thank you, Councilor.
Wendy, do we have anybody signed up to testify?
Keelan McClymont
No, we don't have anyone.
Elana Pirtle-Guiney
Okay, then let's move right into discussion.
Councilor Avalos?
Candace Avalos
Yeah, thank you so much for your presentation.
Just a couple of logistical questions.
So as it relates to the amount of the future transition.
Do we have a range for what a wholesale transition could ultimately cost compared to the roughly $787K that we're already spending annually on replacement gear?
Lauren Johnson
Yeah, I can— I'm awful at math, but I can do that calculation.
It would, in today's dollars, if we did 4,500 by 700 firefighters, That's what we would get for a total for everybody to get into one set.
We actually have 2 sets just for logistics.
Once they wear their A set and it becomes dirty because of an exposure, they swap into a B set while the A set gets washed.
Candace Avalos
And then this is a— since this is a resolution, so this is about telling the— I guess help me understand the part about like setting aside money, you know, general fund underspend.
Is it that we're telling the mayor that as he prepares the first budget that, you know, if there's underspend that we're putting it into a pot?
Like, just help me understand the logistics of that.
Eric Zimmerman
Yeah, uh, great.
It's essentially— it's establishing, or, or I guess it's a resolution asking and directing the administration to establish the fund.
And like a lot of financial policies, things like we use 50% of our one-time on capital, or we use it— this is essentially one of those types of policies.
And so our— I would say if the council passes this, the goal would be that we would see a budget crafted by the administration that recognizes this resolution and it recognizes the—.
The need.
Year-end savings or underspend of the, of the bureau and frontloads that into this subfund, keeping those what were fire funds, keeping them in fire, but just for use at a later date.
Candace Avalos
Is that something, I guess, like, that's binding to us?
Like, would we look at that and say— because all, all bureaus have underspend to some extent, and that all kind of just is color money and it gets put random places.
I guess I'm trying to understand how's it going to show up to us?
Like, is it on the mayor's level?
Is it on our level?
Do we need to take a certain action based on this resolution in the next budget that says we've already agreed that this money can't be put towards other things?
Eric Zimmerman
I think it's more of a signaling of a set of priorities and values than it is a hard and fast— we can always, as the Budget Committee, I believe the Budget Committee can always say we're choosing to not follow that resolution that we passed for these reasons.
But it allows us to signal where we, where we can and where we do want it to go.
It's not interrupting the budget cycle.
It is just creating a place that if this council wants to signal and set aside money, that it can in the, in the upcoming budgets process.
Candace Avalos
Okay.
And then, um, Chief, you had mentioned, uh, the cost of $4,500, right, for the equipment.
I guess maybe I was getting confused.
Is the alternative or the thing that we're working towards already available, we just can't afford it, or it hasn't been created yet?
Lauren Johnson
So it's a little bit of both.
There is one manufacturer that claims to be completely PFAS-free.
So in the industry, we're looking for more testing that's third-party testing to verify.
And I would just say the market isn't there yet, so there's no competition for that.
Particular set of turnout gear that's marketed as PFAS-free.
So we really need that to evolve a little bit more to make sure— what we have seen, the outer— so there's 3 layers to the garment.
The outer shell used to have PFAS-free.
That's where we needed most of the water shedding to happen.
And all manufacturers have gotten rid of PFAS in that outer shell.
And what we're seeing is a faster wear and tear because you don't have the same protection.
And for firefighters, what that translates to is more heat coming through, a greater rate of burns, a shorter life of that garment that should last 10 years.
Maybe it only lasts 5 now.
So we need that technology to improve before it's the right choice for Portland.
Candace Avalos
I see.
And then, so are you saying, I guess, where's that trigger of like when we decide the technology is good?
Like, is that something you're going to make a call on?
Is it that— and what if If the market does not produce more alternatives, like, is there going to be a point where we say we can't keep waiting for the market to produce new things, so we're going to go with this current thing?
Lauren Johnson
So I, I would say I'm not sure.
I think that it's important for us to report every year to the CA kind of what the status of the market is.
I do want to be clear that the gear that we're in right now, we don't have concerns, is shedding.
We do believe that that PFAS is thank you.
I think the concern is safe and as it's contained, but long-term, right, I think as a city we have concerns about wanting to make sure that we support purchases that are more environmentally friendly.
And so I think you're going to see the city and state largely moving away from PFAS.
So that could force a change, right?
We saw that happen in California.
But what I would like in terms of maintaining you know, a pretty high standard for firefighter safety is that we continue to report to you guys, here's how the market's changing.
And once you see other fire departments that are similar to Portland making this move, and we watch those wear test trials so that we know how it's impacting their fires, then we'll be ready to pull the trigger.
And I think just to speak to the sub fund place, you know, normally we would have to turn any savings any savings over, right?
We don't get to carry that year over year.
One thing that this could really help us with is if we know that that suitable alternative is on the horizon, we might hold back a year or 2 from purchasing the regular amount of sets that we need, we usually do.
We might say instead of the 175, let's only buy 100 because we really think this is just around the corner and that's where we can wonderful.
Candace Avalos
Thank you.
That's all.
Lauren Johnson
Yes, ma'am.
Elana Pirtle-Guiney
Thank you, Councilor.
Councilor Morillo.
Angelita Morillo
Thank you so much for being here to present on this.
This seems like a pretty simple yes to me.
You know, it's very common sense that we should protect our firefighters from PFAS.
My understanding of the policy, just for clarity, based on some of Councilor Avalos's questions, is that this is a little bit more signaling intent for the future because it doesn't necessarily do anything or hold us to anything today since the technology isn't available.
So this is just saying this is something we want to do if we can.
So it seems like an easy yes.
Dan Ryan
Thanks.
Lauren Johnson
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor Morillo.
Councilor Zimmerman, I'm looking out and we don't have anybody from our finance office here today, But when this comes forward to council, if it passes out of committee today, can you make sure that we have some information about what other financial policies we have that this would— I hate to say come into conflict with, but what are other things where we say underspend should go to X?
Because I know we have a few policies like that.
This seems like a no-brainer to support to me, but I do think the context is important of understanding what else we've said that about as we move it forward.
Eric Zimmerman
Will do.
Elana Pirtle-Guiney
Thank you, I appreciate that.
Councilor Ryan?
Dan Ryan
Yes, thank you, Chair, and thank you, Councilor Zimmerman and Chief Johnson.
It's good to see you.
Lauren Johnson
You too.
Dan Ryan
And, uh, I just want to say this is a, a very proactive day for you, Councilor Zimmerman.
You're, um, making sure that we're on ahead of the curve.
And this, um, I also want to thank you for educating the public on this topic.
Um, coming here does that, and I know that you're in complete agreement and alignment with labor So it's kind of the second item in a row where we've had management and labor come together, which is always a good sign that we're probably supposed to move something along.
And thank you so much.
I learned a lot, and I'm excited to move this along.
Michael Salvaggio
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor.
Colleagues, seeing no one else in the queue, Chief, thank you so much for being here and for all of the information.
Eric Zimmerman
And, um, I move to move the resolution to I move before City Council with recommendation for full adoption.
Dan Ryan
Second.
Elana Pirtle-Guiney
Okay, Wendy, could you please call the roll?
Keelan McClymont
Morillo.
Angelita Morillo
Aye.
Unidentified speaker
Zimmerman.
Eric Zimmerman
Aye.
Unidentified speaker
Avalos.
Candace Avalos
Aye.
Unidentified speaker
Ryan.
Dan Ryan
Aye.
Unidentified speaker
Pirtle-Guiney.
Elana Pirtle-Guiney
Aye.
Unidentified speaker
The motion is approved.
Elana Pirtle-Guiney
Great, that moves us to our last item on the agenda.
I would like us to start this item, get through the presentation, and if we can get to a vote, fantastic, but if not, we will At least have begun the work.
I know we have a few guests here today for it.
Wendy, could you please call agenda item 6?
Unidentified speaker
Yes, thank you.
Item number 6, document number 2026-309, support the preservation of court access to protect taxpayers from extreme weather costs.
Elana Pirtle-Guiney
Okay, Councilor Novick, thank you for your patience with us today.
I know we're running a little bit behind, but you have brought this thank you.
Steve Novick
Uh, Chair Pirtle-Guiney, members of the committee, my name is Steve Novick.
Thanks for the opportunity to be before you today.
Uh, the resolution I bring to you today, it denounces legislation that some Republicans have proposed in the U.S. House and Senate.
Now, I realize that we could spend every minute of every week denouncing legislation that Republicans have introduced in the House and Senate, and I don't want to open the floodgates.
But when Breach Collective came to me suggesting I bring this resolution, there are a couple of factors that made me less worried about opening the floodgates.
A number of jurisdictions around the country—states, cities, and counties—including Multnomah County—have brought lawsuits against the fossil fuel industry to hold them accountable for damages caused by climate change.
The lawsuits focus on the deceptive conduct.
Of the fossil fuel companies.
The resolution you see in front of you quotes liberally from the complaint filed by the state of Delaware, which details that as far back as 1959, the fossil fuel companies knew everything they needed to know about climate change and kept on pretending for decades that it wasn't real.
One of the reasons I wanted to bring this resolution actually is just to give people the opportunity to read the Delaware— the elements of Delaware complaint.
Right now, there is legislation in the House and Senate under the name Stop Climate Shakedowns Act to preempt all of these cases, to say that states, cities, counties cannot bring such cases against the fossil fuel companies.
Dan Ryan
Thank you.
Steve Novick
So one of the reasons I thought it was appropriate during this resolution is that this legislation would directly affect our ability to act.
If we ever decided to join Multnomah County or bring our own lawsuit against the fossil fuel companies, this would stop us from doing that.
Another reason, frankly, that this resolution appealed to me is that at my last job with the Oregon State Attorney General's Office, we were part of coalitions that, that were constantly filing amicus briefs defending the right of cities and counties and states to bring these suits in state court.
What was usually going on was the fossil fuel companies were trying to remove the suits to federal court.
We were going in saying, no, this should— these suits should properly be brought in state court.
So bringing this resolution struck me as kind of a continuation of work that I was doing in my last job.
So this, I mean, I would hope is a no-brainer.
We should maintain our right That cities, states, and counties should maintain our right to go to court to seek redress of grievances.
There should not be a special carve-out for the fossil fuel companies.
So I ask for your support for this resolution.
Elana Pirtle-Guiney
Thank you, Councilor.
Colleagues, questions?
Actually, before we move to questions, I believe we do have somebody signed up to testify.
Unidentified speaker
We have one person signed up to testify, Charisse Bach.
Elana Pirtle-Guiney
Okay, why don't we take our public testimony first, and then we will move to questions.
Welcome, how are you?
Cherise Bach
Hello, councilors, I'm doing pretty well, thank you.
I'm Cherise Bach, I use she/her pronouns.
I'm the climate policy director for 350 PDX, and so, uh, we bring our support for this, and thank you to Councilor Novick for bringing up this resolution.
Uh, we submitted testimony on behalf of ourselves as well as An organizational sign-on letter from 6 organizations from Portland and around the state that you can look at, and a couple more have joined since I sent that in, so it will also grow as we get to the— hopefully the full council.
And so this is an issue that we've been working on kind of at the state level and has been something that's really popular with folks that Councilor Novick mentioned the federal bills that are going on.
There are also some at different state levels, and so we're concerned about those.
And we're also wanting to pass something at the state level that would help us recover funds that fossil fuel companies have gained in profits while causing climate harm in the last several decades.
So we're asking that the council pass a resolution and so we're part of Make Polluters Pay Coalition with over 50 groups from around the state that's working on a climate Superfund bill at the state level that would help to recover some of those costs from damages to past climate harms.
And so this would help kind of indicate Portland's support for those types of actions that we really do need to be able to have the option to use litigation and legislation To make sure that we can pay for those climate damages that at this point taxpayers are having to pay for because we're already experiencing those climate emergencies.
So I think that is basically all I have to say.
There have been bills passed in New York and Vermont to make polluters pay.
The Climate Superfund is based on kind of the Superfund model of, you know, making the companies that cause the soil and water pollution pay those damages.
So this would extend the concept to air pollution.
So I encourage you to vote yes for this resolution.
And then also, if you're interested in signing on to a national sign-on letter— thank you, Councilor Novick and Councilor Murillo, for already signing that national letter— let me know and I'll send you the information.
And I hope that also, as you're looking at Portland's legislative slate, that you will support the Climate Superfund bill at the state level and indicate that Portland would like something like that to pass so that the state gets money to deal with climate emergencies that would pass on down to cities and counties.
Thank you.
Elana Pirtle-Guiney
Thank you so much for being here with us today and for, um, submitting that written testimony.
Keelan McClymont
That concludes testimony.
Elana Pirtle-Guiney
Great, colleagues, that moves us into discussion and debate.
Does anybody have any questions for Councilor Novick or comments?
Councilor Avalos, go right ahead.
Candace Avalos
Yeah, thank you, Councilor Nowak, for bringing this up.
I wonder if you can help me parse something out based on your logic for this resolution, because I know we just had a conversation about citizen suits around Zenith.
I know that's an ongoing issue, but I just am seeing a similarity.
I'm trying to understand your thinking of how this is different from that.
Um, because the Green-Murillo amendment that we discussed, um, and this resolution obviously involve very different legal mechanisms, but they both raise this broader question about access to courts as a tool for accountability.
Uh, I know you had some concerns about the citizen enforcement mechanism in that amendment, um, but this resolution strongly affirms preserving access to courts in the climate accountability context.
So could you just share, uh, how you distinguish those two?
Yeah, I mean, I think that's a great question.
Steve Novick
Thank you, Councilor Avalos.
So this resolution is about maintaining the rights of local and state governments to sue the fossil fuel industry for the damages caused by climate change.
Um, the amendment brought by Councilors Green and Murillo would allow for the general public to sue to enforce the enforce rights of local and state governments to sue the fossil fuel industry for damages caused by climate change.
Thank you.
A specific contract between the city and another party, which to me is a very different thing.
Also, I think that the effect of passing that amendment would be to, in fact, in effect, invite the fuel company to sue the city.
So I have concerns about that.
But also, there is a long tradition of states and cities and counties being able to go to state court to seek redress of grievances, there is not a long tradition of using citizen suits to enforce contracts between cities and other entities.
Normally, the people who sue to enforce a contract are the parties to a contract.
There's limited circumstances in which outside parties are referred to as third county beneficiaries, but they're quite limited where there's that there's not a history of the general public being able to sue to enforce contracts between cities and other entities.
Candace Avalos
Thank you.
So the distinction you're making is that government and government entities should be able to sue, but individual citizens should not be able to sue?
Is that the difference?
Steve Novick
No, no, Councilor, that is not the distinction.
Candace Avalos
Okay, tell me one more time then.
What did I miss?
Steve Novick
My distinction is between, um, bringing a lawsuit bringing a lawsuit against companies for climate damages is different than bringing a lawsuit to enforce a contract between 2 entities.
Candace Avalos
Okay, got it.
Okay, thanks for explaining.
That's all.
Steve Novick
Thank you.
Elana Pirtle-Guiney
Thank you, Councilor Avalos.
I'll jump in.
Councilor Novick, thank you for bringing this forward.
When I first saw it, I was a bit concerned about this taking us down an unsustainable path of passing resolutions about what is happening at the federal level, and I really appreciate your explanation about the difference here.
We spent our entire committee last— I guess that's 2 weeks ago— talking about climate change and the fact that we need to be doing more as as a city to meet our own climate goals.
So the timing here is incredibly, it's incredibly well-timed.
Climate change is imposing growing costs on our city, whether those are costs related to distributing air conditioners, costs related to cooling shelters, costs related to creating safe spaces when we have smoke events in the city from nearby wildfires, and the health costs of Portlanders that are associated with all of those things.
We know that our costs are going up because of the actions of these fossil fuel companies.
So I, I see a nexus here that is an important one.
And the fact that this is about preserving our rights as a city is an important nexus as well that helps me see this as different from opening up that broader path, as you suggested.
I actually think this is a really important resolution for us to pass, not just one that we could, but one that we must, because we need to send the signal that council wants us to engage in more lawsuits.
The mayor has the ability, and I should say more lawsuits around climate change.
The mayor has the ability to sign on to lawsuits on behalf of the city.
I think that's a good point.
But if the mayor chooses not to, council could also take action there.
And I think that this resolution is an important signal for us to send to the mayor that we'd like to see him be more proactive in this area.
And it's an important step for us to take to then be able to point to if we choose as a body to direct the administration to enter into some of these lawsuits.
Thank you.
Lawsuits in the future.
So I think there's a lot we can build on from this resolution should we move it forward.
We know that our community is directly impacted by climate change and that when communities are harmed by climate change, we must have those legal avenues before us to be able to take actions.
So thank you for bringing this forward.
Thank you for, for the work that you've done in this area, and I will look forward to supporting today.
Councilor Ryan, go right ahead.
Dan Ryan
Sure.
I, real quick, I just want to say thank you, Councilor Novick.
Um, this is important, it's timely, and it's— it gets to the accountability that I keep hearing Portlanders want, um, that is crystal clear to them.
So I really appreciate that this will hopefully pass today.
I think, um, there's a lot of agreement up here, and, uh, I appreciate that Councilor Novick got on— got, got this to us, um, today.
Okay, thank you.
Elana Pirtle-Guiney
Colleagues, seeing no one else in the queue, um, this is a resolution, uh, so do we have a motion to move it?
Dan Ryan
Yeah, I'll— uh, Novick can't do it.
Novick can't do it.
Um, I move item— sorry, I wasn't prepared for this.
I move to, um, I move the motion to support this resolution to support the preservation of court access to taxpayers and extreme weather costs.
Um, and so, um, do I have a second?
Elana Pirtle-Guiney
I'll second.
And could we call the roll?
Angelita Morillo
Morillo.
Dan Ryan
Motion.
Angelita Morillo
Aye.
Unidentified speaker
Zimmerman.
Eric Zimmerman
Absent.
Keelan McClymont
Avalos.
Candace Avalos
Aye.
Unidentified speaker
Ryan.
Dan Ryan
Aye.
Unidentified speaker
Pirtle-Guiney.
Elana Pirtle-Guiney
Aye.
Unidentified speaker
The motion to refer is approved.
With 4 aye votes and 1 absent.
Thank you.
Elana Pirtle-Guiney
And thank you, Councilor Novick, for bringing this to our committee today.
Candace Avalos
Thank you.
Elana Pirtle-Guiney
Colleagues, we are through our agenda.
In 2 weeks, we will have a presentation on Advance Portland, which is our city's economic development policy, and a first opportunity to talk about this is a topic we will come back to in the future.
We will then have a discussion around the city's policy for privatizing publicly owned land.
We do have a policy at the city for how bureaus need to move forward if they would like to sell land that is currently publicly owned.
And our council has at various times suggested that we revisit that policy.
Keelan McClymont
Thank you.
Elana Pirtle-Guiney
We may want to revisit that policy.
So we'll have an opportunity to learn more about what is currently on the books, begin a discussion about what we might want to do there moving forward, and then hear a specific request to transfer property currently owned by the city to a private entity.
We will be back in 2 weeks for those conversations.
Thank you all for the debate today.
And with that, I will close our committee meeting.