BILL NUMBER: SB 1400 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 7, 2008
AMENDED IN ASSEMBLY JULY 2, 2008
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 or 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 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 receiving a monetary distribution
, as specified, or obtaining information
about a prize or sweepstakes, and would prohibit a sweepstakes
sponsor from selling the names or addresses of its customers or
participants without their prior express consent.
Because this bill would expand the advertising prohibitions
described above, the violation of which would be 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 or 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 or solicitation materials selling
information regarding sweepstakes shall include a clear and
conspicuous statement of the 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-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 or 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 or 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 or 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 or 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 or 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.
required is clearly and conspicuously disclosed in
the body of the solicitation materials.
(i) Solicitation materials containing sweepstakes entry materials
and or solicitation materials selling
information regarding sweepstakes shall not do any
either 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) 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-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 selling the names or
addresses of their customers and participants related to sweepstakes
without the prior express consent of their customers or participants.
(3) (A) For the purposes of this section, "sweepstakes sponsor"
means either of the following:
(i) A person or entity that operates or administers a sweepstakes
as defined in paragraph (12) of subdivision (a) of Section 17539.5.
(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.