Amended in Senate April 8, 2013

Senate Bill No. 272

Introduced by Senator Corbett

February 14, 2013

An act to begin delete add Section 17533.65 to end delete begin insert amend Section 17533.6 of end insert the Business and Professions Code, relating to begin delete advertising. end delete begin insert business. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 272, as amended, Corbett. Advertising begin insert and solicitations end insert : begin insert government and end insert military endorsements.

Existing law makes it unlawful for any person, firm, corporation, or association that is a nongovernmental entity to solicit funds or information, or the purchase of goods or services, by means of a mailing, electronic message, or Internet Web site that contains a seal, emblem, insignia, begin delete trade, end delete begin insert trade end insert or brand name, or any other term, symbol, or content that reasonably could be interpreted or construed as implying any federal, state, or local government connection, approval, or endorsement, unless certain criteria are met. A violation of begin delete provisions related to advertising end delete begin insert this provision end insert is a crime.

This bill would begin delete additionally make it unlawful for any person, firm, corporation, or association that is a nongovernmental entity to use any seal, emblem, insignia, trade, or brand name, or any other term, symbol, or content, that reasonably could be interpreted or construed as implying any federal military, state military, military veteran, or military or veteran service organization connection, approval, or endorsement of any financial product, goods, or services, or for purposes of advertising or to promote certain events, as specified, unless the nongovernmental entity has an expressed connection with, or the approval or endorsement of, that entity. The bill would establish specified civil and criminal penalties for a violation of its provisions. end delete begin insert revise and recast that provision and would make it unlawful for any person, firm, corporation, or association that is a nongovernmental entity to use any seal, emblem, insignia, trade or brand name, or any other term, symbol, or content that reasonably could be interpreted or construed as implying any federal, state, or local government, military veteran entity, or military or veteran service organization connection, approval, or endorsement of any product or service, including, but not limited to, any financial product, goods, or services, by any means, including, but not limited to, a mailing, electronic message, Internet Web site, periodical, or television commercial. end insert

begin insert

This bill would authorize any person, firm, corporation, or association that is a nongovernmental entity to advertise or promote any event, presentation, seminar, workshop, or other public gathering using a seal, emblem, insignia, trade or brand name, or any other term, symbol, or content, if the person, firm, corporation, or association that is a nongovernmental entity has an expressed connection with, or the approval or endorsement of, a federal, state, or local government, military veteran entity, or military or veteran service organization. The bill would authorize any person, firm, corporation, or association that is a nongovernmental entity to solicit information, solicit the purchase of or payment for a product or service, or solicit the contribution of funds or membership fees, by any means, including, but not limited to, a mailing, electronic message, Internet Web site, periodical, or television commercial disseminated in this state, using a seal, emblem, insignia, trade or brand name, or any other term, symbol, or content, if the person, firm, corporation, or association that is a nongovernmental entity meets certain requirements.

end insert begin delete

Because a violation of the bill’s provisions would be a crime,

end delete

begin insert By changing the definition of a crime and creating new crimes, end insert the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 17533.6 of the end insert begin insert Business and Professions
Code end insert begin insert is amended to read: end insert

17533.6.  

(a)  begin delete It end delete begin insert Except as described in subdivisions (b) and (c),
it end insert is unlawful for any person, firm, corporation, or association that
is a nongovernmental entity begin delete to solicit information, or to solicit the
purchase of or payment for a product or service, or to solicit the
contribution of funds or membership fees, by means of a mailing,
electronic message, or Internet Web site that contains end delete begin insert to use end insert a seal,
emblem, insignia, trade or brand name, or any other term, symbol,
or content that reasonably could be interpreted or construed as
implying any federal, state, or local government begin insert , military veteran
entity, or military or veteran service organization end insert connection,
approval, or endorsement begin delete , unless the requirements of paragraph
(1) or (2) have been met, as follows: end delete begin insert of any product or service,
including, but not limited to, any financial product, goods, or
services, by any means, including, but not limited to, a mailing,
electronic message, Internet Web site, periodical, or television
commercial disseminated in this state. end insert

begin insert

(b) Notwithstanding subdivision (a) and if permitted by other
provisions of law, any person, firm, corporation, or association
that is a nongovernmental entity may advertise or promote any
event, presentation, seminar, workshop, or other public gathering
using a seal, emblem, insignia, trade or brand name, or any other
term, symbol, or content as described in subdivision (a), if the
person, firm, corporation, or association that is a nongovernmental
entity has an expressed connection with, or the approval or
endorsement of, a federal, state, or local government, military
veteran entity, or military or veteran service organization.

end insert begin insert

(c) Notwithstanding subdivision (a), any person, firm,
corporation, or association that is a nongovernmental entity may
solicit information, solicit the purchase of or payment for a product
or service, or solicit the contribution of funds or membership fees,
by any means, including, but not limited to, a mailing, electronic
message, Internet Web site, periodical, or television commercial
disseminated in this state, using a seal, emblem, insignia, trade
or brand name, or any other term, symbol, or content as described
in subdivision (a), if the person, firm, corporation, or association
that is a nongovernmental entity meets the requirements of
paragraph (1) or (2) as follows:

end insert

(1) The nongovernmental entity has an expressed connection
with, or the approval or endorsement of, a federal, state, or local
government entity, if permitted by other provisions of law.

(2) The solicitation meets all of the following requirements:

(A) The solicitation conspicuously displays the following
disclosure on the front and back of every page of the solicitation:

“THIS PRODUCT OR SERVICE HAS NOT BEEN APPROVED
OR ENDORSED BY ANY GOVERNMENTAL AGENCY, AND
THIS OFFER IS NOT BEING MADE BY AN AGENCY OF
THE GOVERNMENT.”

(B) In the case of a mailed solicitation, the front of the envelope,
outside cover, or wrapper in which the matter is mailed
conspicuously displays the following disclosure:

“THIS IS NOT A GOVERNMENT DOCUMENT.”

begin insert

(C) If permitted by other provisions of law, in the case of a
television commercial disseminated in this state, the solicitation
conspicuously displays the following disclosure at the top of the
television screen for the entire duration of the television
commercial:

end insert begin insert

“THIS PRODUCT OR SERVICE HAS NOT BEEN APPROVED
OR ENDORSED BY ANY GOVERNMENTAL AGENCY, AND
THIS OFFER IS NOT BEING MADE BY AN AGENCY OF THE
GOVERNMENT.”

end insert
begin insert end insert
begin delete

(C)

end delete

begin insert (D) end insert  The disclosure in subparagraph (A) shall be displayed
conspicuously, as provided in subdivision begin delete (d) end delete begin insert (f) end insert , and immediately
below each portion of the solicitation that reasonably could be
construed to specify an amount due and payable by the recipient.
The disclosure in subparagraph (B) shall be displayed
conspicuously, as provided in subdivision begin delete (d) end delete begin insert (f) end insert , and immediately
below the area of the envelope, outside cover, or wrapper that is
used for a return address. begin insert The disclosure in subparagraph (C) shall
be displayed conspicuously, as provided in subdivision (f), and at
the top of the television screen. end insert The disclosures in subparagraphs
begin delete (A) and end delete begin insert (A), end insert (B) begin insert , and (C) end insert shall not be preceded, followed, or
surrounded by symbols, terms, or other content that result in the
disclosures not being conspicuous or that introduce, modify,
qualify, or explain the text of those disclosures.

begin delete

(D)

end delete

begin insert (E) end insert  The solicitation does not use a title or trade or brand name
that reasonably could be interpreted or construed as implying any
federal, state, or local government connection, approval, or
endorsement, including, but not limited to, use of the term
“agency,” “administrative,” “assessor,” “board,” “bureau,”
“collector,” “commission,” “committee,” “department,” “division,”
“recorder,” “unit,” “federal,” “state,” “county,” “city,” or
“municipal,” or the name or division of any government agency.

begin delete

(E)

end delete

begin insert (F) end insert  The solicitation does not specify a date or time period when
payment to the soliciting nongovernmental person, firm,
corporation, or association is due, including, but not limited to,
use of the terms “due date,” “due now,” “remit by,” “remit
immediately,” “payment due,” “pay now,” “pay immediately,” or
“pay no later than,” unless the solicitation displays, in the same
sentence as the date or time period specified, how the information
being solicited will be used, a description of the product or service
that is to be provided and to what government agency it shall be
rendered, or how the solicited funds or membership fees will be
used, as applicable.

begin delete

(F)

end delete

begin insert (G) end insert  The solicitation does not state or imply that payment to any
person, firm, corporation, or association that is not a government
entity is mandatory or required by law, or state or imply that
penalties, fines, or consequences will occur if payment is not made
to the soliciting nongovernmental person, firm, corporation, or
association.

begin delete

(b)

end delete

begin insert (d) end insert  Notwithstanding Section 17534, any violation of this section
is a misdemeanor punishable by imprisonment in a county jail not
exceeding six months, or by a fine not exceeding two thousand
five hundred dollars ($2,500), or by both that fine and
imprisonment.

begin delete

(c)

end delete

begin insert (e) end insert   Any person who is harmed as a result of a violation of this
section shall be entitled to recover, in addition to any other
available remedies, damages in an amount equal to three times the
amount solicited.

begin delete

(d)

end delete

begin insert (f) end insert  For purposes of this section, “conspicuous” or
“conspicuously” means displayed apart from other print on the
page, envelope, outside cover, or wrapper and in not less than
12-point boldface font type in capital letters that is at least 2-point
boldface font type sizes larger than the next largest print on the
page, envelope, outside cover, or wrapper and in contrasting type,
layout, font, or color in a manner that clearly calls attention to the
language.

begin delete

SECTION 1.  

Section 17533.65 is added to the Business and
Professions Code, to read:

17533.65.  

(a) It is unlawful for any person, firm, corporation,
or association that is a nongovernmental entity to use any seal,
emblem, insignia, trade, or brand name, or any other term, symbol,
or content that reasonably could be interpreted or construed as
implying any federal military, state military, military veteran, or
military or veteran service organization connection, approval, or
endorsement of any financial product, goods, or services, unless
the person, firm, corporation, or association has an expressed
connection with, or the approval or endorsement of, the federal
military, state military, or military veteran entity, or military or
veteran service organization.

(b) A person, firm, corporation, or association that is a
nongovernmental entity shall not use any seal, emblem, insignia,
trade, or brand name, or any other term, symbol, or content in any
advertising or to promote any event, presentation, seminar,
workshop, or other public gathering that reasonably could be
interpreted or construed as implying any federal military, state
military, military veteran, or military or veteran service
organization connection, approval, or endorsement of any financial
product, goods, or services, unless the person, firm, corporation,
or association has an expressed connection with, or the approval
or endorsement of, the federal military, state military, or military
veteran entity, or military or veteran service organization.

(c) Any violation of this section is a misdemeanor punishable
by imprisonment in a county jail not exceeding six months, or by
a fine not exceeding two thousand five hundred dollars ($2,500),
or by both that fine and imprisonment.

(d) Any person who is harmed as a result of a violation of this
section shall be entitled to recover, in addition to any other
available remedies, damages in an amount equal to three times the
amount solicited.

(e) For purposes of this section, “state military” has the same
meaning set forth in Section 120 of the Military and Veterans
Code, and includes the National Guard, State Military Reserve,
and the Naval Militia.

end delete

SEC. 2.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.