BILL NUMBER: SB 1400 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 24, 2008
INTRODUCED BY Senator Simitian
FEBRUARY 21, 2008
An act to amend Section 17539.15 of the Business and Professions
Code, relating to business.
LEGISLATIVE COUNSEL'S DIGEST
SB 1400, as amended, Simitian. Sweepstakes.
Existing law provides that any person who contrives, prepares,
sets up, proposes, or draws any lottery is guilty of a misdemeanor.
Existing law defines "sweepstakes" to mean any procedure for the
distribution of anything of value by lot or by chance that is not
unlawful. Existing law sets forth specified advertising and
solicitation requirements with regard to the operation of
sweepstakes, as specified.
This bill would prohibit sweepstakes materials, as defined,
from representing that a person has been specially selected, as
defined, when more than 25% of the persons receiving the materials
received the same materials, and would impose various requirements
where less than 25% of the persons received the same materials. The
bill would also prohibit sweepstakes materials from making various
other misleading or false representations. The bill would
also require sweepstakes materials to disclose the date the final
winner will be determined. The bill would specify that the
operator of any sweepstakes sponsor, as
defined, may not condition the collection of a prize upon
payment of a fee and would prohibit these sponsors from sharing
or selling the names and information of its customers or participants
without their express consent. The bill would make other
conforming changes .
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17539.15 of the Business and Professions Code
is amended to read:
17539.15. (a) Solicitation Sweepstakes
materials containing sweepstakes entry materials
shall not represent, taking into account the context in
which the representation is made, including, without limitation,
emphasis, print, size, color, location, and presentation of the
representation and any qualifying language, that a person is a winner
or has already won a prize or any particular prize unless
that person has in fact won a prize or any particular prize
. If the representation is made on or visible through the
mailing envelope containing the sweepstakes materials, the context in
which the representation is to be considered, including any
qualifying language, shall be limited to what appears on, appears
from, or is visible through the mailing envelope.
(b) Solicitation Sweepstakes
materials containing sweepstakes entry materials
shall include a prominent statement of the no-purchase-necessary
message, in readily understandable terms, in the official rules
included in those solicitation sweepstakes
materials and, if the official rules do not appear thereon, on
the entry-order device included in those solicitation
sweepstakes materials. The no-purchase-necessary
message included in the official rules shall be set out in a
separate paragraph in the official rules and be printed in capital
letters in contrasting typeface not smaller than the largest typeface
used in the text of the official rules.
(c) Sweepstakes entries not accompanied by an order for products
or services shall not be subjected to any disability or disadvantage
in the winner selection process to which an entry accompanied by an
order for products or services would not be subject.
(d) Sweepstakes materials containing sweepstakes entry
materials shall not represent that an entry in the
promotional sweepstakes accompanied by an order for products or
services will be eligible to receive additional prizes or be more
likely to win than an entry not accompanied by an order for products
or services or that an entry not accompanied by an order for products
or services will have a reduced chance of winning a prize in the
promotional sweepstakes.
(e) A person or entity that operates a sweepstakes may not charge
a fee as a condition of collecting a prize.
(e) Sweepstakes materials shall not represent that a person has
been specially selected when more than 25 percent of the persons
receiving the sweepstakes materials have received the same
sweepstakes materials.
(f) If sweepstakes materials represent that a person has been
specially selected consistent with subdivision (e), then immediately
adjacent to that representation, in the same print, size, and color
as the representation, the solicitation shall include a statement of
the number of persons in the group, or purported group of persons,
that received the same sweepstakes materials.
(g) Sweepstakes materials shall not represent that the person
receiving the solicitation has received any special treatment or
personal attention from the sweepstakes sponsor or any officer,
employee, or agent of the sweepstakes sponsor.
(h) Sweepstakes materials shall not represent that a person is
being notified a second or final time of the opportunity to receive
or compete for a prize, unless that representation is true.
(i) Sweepstakes materials shall not represent that a prize notice
is urgent or otherwise convey an impression of urgency by use of
description, phrasing on a mailing envelope, or similar method,
unless there is a limited time period in which the recipient must
take some action to claim, or be eligible to receive, a prize, and
the date by which that action is required appears immediately
adjacent to each representation of urgency in the same print, size,
and color as each representation of urgency.
(j) Sweepstakes materials shall not do any of the following:
(1) Simulate or falsely represent that it is a document
authorized, issued, or approved by any court, official, or agency of
the United States or any state, or by any lawyer, law firm, or
insurance or brokerage company.
(2) Create a false impression as to its source, authorization, or
approval.
(k) Sweepstakes materials shall disclose the date the final winner
will be determined.
(f)
(l) For purposes of this section:
(1) "No-purchase-necessary message" means a statement to
the effect that no purchase is necessary as a condition of entering
the promotional sweepstakes. the following statement:
"No purchase or payment of any kind is necessary to enter or win this
sweepstakes."
(2) "Official rules" means the formal printed statement, however
designated, of the rules for the promotional sweepstakes appearing in
the solicitation s weepstakes
materials. The official rules shall be prominently identified
and all references thereto in any solicitation
sweepstakes materials shall consistently use the
designation for the official rules that appears in those materials.
Each sweepstakes solicitation shall contain a copy of the
official rules. All sweepstakes materials shall
contain a copy of the official rules.
(3) "Sweepstakes materials" means any of the following:
(A) Sweepstakes entry materials.
(B) Solicitation materials connected to or promoting sweepstakes.
(C) Solicitation materials selling information regarding
sweepstakes.
(4) "Specially selected" means a representation that a person is
among a limited group of persons with an enhanced likelihood of
receiving sweepstakes materials.
(m) (1) A sweepstakes sponsor may not charge a fee as a condition
of collecting a prize.
(2) Sweepstakes sponsors are prohibited from sharing or selling
the names and information of their customers and participants related
to sweepstakes without the express consent of their customers or
participants.
(3) For the purposes of this section, "sweepstakes sponsor" means
either of the following:
(A) A person or entity that operates or administers a sweepstakes
as defined in paragraph (12) of subdivision (a) of Section 17539.5.
(B) A person or entity that offers, by means of a notice, a prize
to another person in conjunction with any real or purported
sweepstakes that requires or allows, or creates the impression of
requiring or allowing, the person to purchase any goods or services,
or pay any money, as a condition of receiving, or in conjunction with
allowing the person to receive, use, or obtain a prize or
information about a prize.