BILL NUMBER: SB 1400 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 17, 2008
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 all
sweepstakes solicitations from representing that a person has been
specially selected, as defined, unless that representation is true.
The bill would further prohibit sweepstakes solicitations from making
various other misleading or false representations. The bill would
also require the official rules for a sweepstakes
solicitations to disclose information about the
date the final winner will be determined. The bill would also
prohibit a sweepstakes sponsor, as defined, from charging a fee as a
condition of participation or receiving a prize or monetary
distribution, as specified, and would prohibit a sweepstakes sponsor
from sharing or selling the names or personally
identifiable information of its customers or participants
without their prior express consent , with specified exceptions
.
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: yes.
State-mandated local program: 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) 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) 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 no-purchase-or-payment-necessary
message, in readily understandable terms, in the official
rules included in those solicitation materials and, if the official
rules do not appear thereon, on the entry-order device included in
those solicitation materials. The no-purchase-necessary
no-purchase-or-payment-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) 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) Solicitation materials containing sweepstakes entry materials
and solicitation materials selling information regarding sweepstakes
shall not represent that a person has been specially selected
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 unless the representation of special
treatment or personal attention is true .
(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.
(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.
(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.
(j) Solicitation materials containing sweepstakes entry materials
and solicitation materials selling information regarding sweepstakes
shall disclose the date the final winner will be
(j) The official rules for a
sweepstakes shall disclose information about the date or dates the
final winner or winners will be determined.
(k) For purposes of this section:
(1) "No-purchase-necessary
"No-purchase-or-payment-necessary message" means the following
statement or a statement substantially similar to 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 materials. The official rules shall be prominently
identified and all references thereto in any solicitation 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.
(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.
(l) (1) A sweepstakes sponsor may not charge a fee as a condition
of 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 or personally identifiable
information of their customers and participants related to
sweepstakes without the prior express consent of their customers or
participants.
(3) This subdivision shall not be construed to prohibit a
sweepstakes sponsor from sharing the names or other personally
identifiable information of customers or participants under any of
the following circumstances:
(A) In connection with the administration of the sweepstakes,
including fulfillment of prizes and provision of winners' lists.
(B) With entities that are affiliated with the sweepstakes sponsor
by common ownership or control.
(C) With third parties with whom the sweepstakes sponsor has
entered into a marketing agreement with respect to the sweepstakes.
(D) Between and among the sponsors, promoters, administrators, and
operators of a specific sweepstakes.
(4) (A) For the
purposes of this section, "sweepstakes sponsor" means either of the
following:
(A)
(i) A person or entity that operates or
administers a sweepstakes as defined in paragraph (12) of subdivision
(a) of Section 17539.5.
(B)
(ii) 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.
(B) A person or entity that merely furnishes a prize in connection
with a sweepstakes that is operated or administered by another
person or entity shall not be deemed to be a sweepstakes sponsor.
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.