BILL NUMBER: SB 1400 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 9, 2008
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 prohibits certain advertising practices, and makes it
a crime to violate any of the provisions governing advertising.
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
and solicitation materials containing sweepstakes entry
materials , as specified.
This bill would revise and recast those provisions to, among
others, apply those requirements to solicitation materials selling
information regarding sweepstakes. The bill would also prohibit
sweepstakes materials, as defined, all
sweepstakes solicitations from representing that a person has
been specially selected, as defined, when more than 25% of
the persons receiving the materials have the same 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 unless
that representation is true . The bill would also
further prohibit sweepstakes materials
solicitations from making various other
misleading or false representations. The bill would also require
sweepstakes materials solicitations to
disclose the date the final winner will be determined. The bill would
specify that the also prohibit a
sweepstakes sponsor, as defined, may not condition the
collection of a prize upon payment of from charging
a fee as a condition of participation or receiving a prize
or monetary distribution, as specified , and would prohibit
a sweepstakes sponsors sponsor
from sharing or selling the names and
or information of its customers or participants without their
prior express consent. The bill would make other conforming
changes.
Because this bill would expand the advertising prohibitions
described above, the violation of which is a crime, 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: no
yes . State-mandated local program: no
yes .
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
Solicitation materials containing sweepstakes entry materials and
solicitation materials selling information regarding sweepstakes
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 Solicitation
materials containing sweepstakes entry materials and solicitation
materials selling information regarding sweepstakes shall
include a clear and conspicuous statement of the
no-purchase-necessary message, in readily understandable terms, in
the official rules included in those sweepstakes
solicitation materials and, if the official rules do not
appear thereon, on the entry-order device included in those
sweepstakes solicitation 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 Solicitation
materials containing sweepstakes entry materials and
solicitation materials selling information regarding sweepstakes
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 Solicitation
materials containing sweepstakes entry materials and solicitation
materials selling information regarding sweepstakes shall not
represent that a person has been specially selected when
more than 25 percent of the persons receiving the sweepstakes
materials have 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 in connection with a sweepstakes unless it
is true.
(f) Solicitation materials containing
sweepstakes entry materials and solicitation materials selling
information regarding sweepstakes 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
(g) Solicitation materials containing
sweepstakes entry materials and solicitation materials selling
information regarding sweepstakes 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
(h) Solicitation materials containing
sweepstakes entry materials and solicitation materials selling
information regarding sweepstakes 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
(i) Solicitation materials containing
sweepstakes entry materials and solicitation materials selling
information regarding sweepstakes 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.
(3) Charge or accept any fee to enter, claim, or win a
sweepstakes.
(k) Sweepstakes materials
(j) Solicitation materials containing
sweepstakes entry materials and solicitation materials selling
information regarding sweepstakes shall disclose the date the
final winner will be determined.
(l)
(k) 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 solicitation
materials. The official rules shall be prominently identified and all
references thereto in any sweepstakes
solicitation materials shall consistently use the designation
for the official rules that appears in those materials. All
sweepstakes materials Each sweepstakes solicitation
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)
(3) "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 a prize.
(m)
(l) (1) A sweepstakes sponsor may not charge a fee as a
condition of collecting a prize entering
a sweepstakes, claiming or winning a prize, receiving a
monetary distribution, or obtaining information about a prize or
sweepstakes .
(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.
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.