BILL NUMBER: SB 1400 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 6, 2008
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 have the same materials, and
would impose various requirements where less than 25% of the persons
received the same materials chance of winning, and
would require sweepstakes materials that are not subject to that
prohibition to include specified information about the number of
persons receiving the sweepstakes 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 sweepstakes sponsor, as
defined, may not condition the collection of a prize upon payment of
a fee , and would prohibit these
sweepstakes sponsors from sharing or selling the names and
information of its customers or participants without their prior
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) Sweepstakes 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) Sweepstakes materials shall include a prominent
clear and conspicuous statement of the
no-purchase-necessary message, in readily understandable terms, in
the official rules included in those sweepstakes materials and, if
the official rules do not appear thereon, on the entry-order device
included in those 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 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) 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 the same chance of winning
.
(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.
(l) For purposes of this section:
(1) "No-purchase-necessary message" means 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 sweepstakes materials. The official rules shall be prominently
identified and all references thereto in any sweepstakes materials
shall consistently use the designation for the official rules that
appears in those materials.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
a winner, a finalist, in first place or tied for first place, or
otherwise among a limited group of persons with an enhanced
likelihood of receiving sweepstakes materials
a prize .
(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 prior 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.