BILL NUMBER: SB 1400 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 29, 2008
PASSED THE ASSEMBLY AUGUST 19, 2008
AMENDED IN ASSEMBLY AUGUST 15, 2008
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, 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
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 receiving a monetary distribution or
obtaining information about a prize or sweepstakes.
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.
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 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
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
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
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
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
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
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 is clearly and conspicuously disclosed in the body of the
solicitation materials.
(i) Solicitation materials containing sweepstakes entry materials
or solicitation materials selling information regarding sweepstakes
shall not do 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.
(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 receiving a monetary distribution or obtaining information about a
prize or sweepstakes.
(2) (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.