BILL ANALYSIS SB 1400 Page 1 Date of Hearing: June 24, 2008 ASSEMBLY COMMITTEE ON JUDICIARY Dave Jones, Chair SB 1400 (Simitian) - As Amended: June 17, 2008 SENATE VOTE : 31-1 SUBJECT : SWEEPSTAKES: ADDITIONAL CONSUMER PROTECTIONS KEY ISSUE : SHOULD NEW CONSUMER PROTECTIONS BE ENACTED TO FIGHT DECEPTIVE SWEEPSTAKES PRACTICES THROUGH IMPROVED DISCLOSURES AND REPRESENTATION RESTRICTIONS? SYNOPSIS This bill seeks to strengthen consumer protections against deceptive sweepstakes practices through improved disclosures and representation restrictions. According to the author's office, California was among the first states to pass sweepstakes laws in 1998 in response to growing complaints about deceptive sweepstakes mailers. However, aside from minor technical clean-up legislation, California's sweepstakes laws have not been appropriately updated since, all the while new deceptive sweepstakes solicitation practices have surfaced that prey on many Californians, especially senior citizens. Because current law does not expressly forbid third parties from selling information regarding sweepstakes opportunities, or bound them by sweepstakes laws and disclosures, this important measure seeks to fill those gaps. The analysis recommends the Committee adopt an amendment to the bill to ensure that the Committee's longstanding commitment to protecting the privacy rights of consumers is maintained. SUMMARY : Recasts California's sweepstakes law by requiring additional disclosures and consumer protections. Specifically, this bill : 1)Adds solicitation materials selling information regarding sweepstakes to the provisions of law concerning solicitation materials containing sweepstakes entry materials. 2)Prohibits solicitation materials containing sweepstakes entry materials and solicitation materials selling information regarding sweepstakes from representing the following: SB 1400 Page 2 a) That a person has been specially selected in connection with a sweepstakes unless it is true; b) 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; c) 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; and, d) 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, color as each representation of urgency. 3)Prohibits solicitation materials containing sweepstakes entry materials and solicitation materials selling information regarding sweepstakes from any of the following: a) Simulating or falsely representing 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; b) Creating a false impression as to its source, authorization, or approval; and, c) Charging or accepting any fee to enter, claim or win a sweepstakes. 4)The official rules for a sweepstakes shall disclose information about the date or dates the final winner or winners will be determined. 5)Prohibits a sweepstakes sponsor from: a) Charging a fee as a condition of entering a sweepstakes, SB 1400 Page 3 claiming or winning a prize, receiving a monetary distribution, or obtaining information about a prize or sweepstakes; or, b) Sharing or selling the names or personally identifiable information of their customers and participants related to sweepstakes without the prior express consent of their customers or participants. c) This provision 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: i) In connection with the administration of the sweepstakes, including fulfillment of prizes and provision of winners' lists. ii) With entities that are affiliated with the sweepstakes sponsor by common ownership or control. iii) With third parties with whom the sweepstakes sponsor has entered into a marketing agreement with respect to the sweepstakes. iv) Between and among the sponsors, promoters, administrators, and operators of a specific sweepstakes. 6)Defines the following terms: a) "No-purchase-or-payment necessary message" to mean 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;" b) "Specially selected" to mean 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; and, c) "Sweepstakes sponsor" to mean either of the following: i) A person or entity that operates or administers a sweepstakes, as specified; or, SB 1400 Page 4 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. d) Further specifies that 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. EXISTING LAW : 1)Defines "sweepstakes" to mean any procedure for the distribution of anything of value by lot or by chance that is not unlawful. 2)Prohibits sweepstakes solicitation materials from representing that a person is a prize winner unless that person has, in fact, won a prize. 3)Requires solicitation materials containing sweepstakes entry materials to include a prominent "no purchase is necessary" message and a copy of the "official rules," as specified. For purposes of this section, defines "no purchase necessary statement" and "official rules" as follows: a) "No purchase necessary statement" as a language that states no purchase is necessary as a condition of entering the promotion sweepstakes; and, b) "Official rules" as the formal printed statement of the rules for the promotional sweepstakes appearing in the solicitation materials. 4)Prohibits sweepstakes entries that do not include an order for products or services from being disadvantaged in the winner selection process for the sweepstakes entered. 5)States that sweepstakes materials shall not represent that entries in the sweepstakes accompanied by an order for products or services will be eligible for additional prizes or SB 1400 Page 5 will be more likely to win than entries from individuals not purchasing a product or service. FISCAL EFFECT : As currently in print this bill is keyed fiscal. COMMENTS : This bill seeks to strengthen consumer protections against deceptive sweepstakes practices through improved disclosures and representation restrictions. According to the author's office, "In response to growing complaints about deceptive sweepstakes mailers, California was among the first states to pass sweepstakes laws in 1998. However, aside from minor technical clean-up legislation, California's sweepstakes laws have not been updated since. In addition, new deceptive sweepstakes solicitation practices have surfaced that prey on Californians' particularly senior citizens. Current law does not expressly forbid third parties from selling information regarding sweepstakes opportunities, nor are they bound by sweepstakes laws and disclosures." The analysis recommends the Committee adopt an amendment to the bill to ensure that the Committee's longstanding commitment to protecting the privacy rights of consumers is maintained. Background . In 2000, a multi-state investigation of the sweepstakes solicitations and misleading business practices of the Publisher's Clearinghouse resulted in a 26-state $34 million settlement and specific injunctions. In response to the scandal, other states have since enacted more comprehensive consumer protections regarding sweepstakes. Examples of their protections are as follows: Colorado : Defines "specially selected" as a representation that a person is a winner, 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; requires that if sweepstakes materials represent that a person has been specially selected, the solicitation must include a statement of the maximum number of persons in the group, with the enhanced likelihood of receiving a prize; and prohibits sweepstakes sponsors from charging a fee as a condition of collecting a prize. Texas : Prohibits sweepstakes sponsors from charging a fee as a condition of collecting a prize and sweepstakes materials from representing that the person receiving the solicitation has received any special treatment or personal attention from SB 1400 Page 6 sweepstakes sponsors or their agents. Oregon : Prohibits sweepstakes materials from representing that a person has been specially selected if more than 25% of persons receiving the sweepstakes materials have the same chance of winning, and requires the sweepstakes materials to disclose the date the final winner will be determined. ARGUMENTS IN SUPPORT : The Privacy Rights Clearinghouse writes, "Of greatest interest to our organization is the provision of SB 1400 that would prohibit sweepstakes sponsors from sharing or selling the names and information of their customers and without the express consent of their customers or participants. Currently, the personal information of high activity customers is sold to other sweepstakes who then can take advantage of such customers. This practice violates the privacy of sweepstakes customers, many of whom are seniors or economically disadvantaged individuals." ARGUMENTS IN OPPOSITION : The California Chamber of Commerce writes, "SB 1400 prohibits sweepstakes sponsors from sharing or selling the 'names and information' of their customers and sweepstakes participants with any entity without the prior express consent of such customers and participants. This is problematic for several reasons: 1) the opt-in requirement contemplated by the 'prior express consent' language is impractical and should be changed to an opt-out requirement, as is consistent with existing federal law, self regulatory guidelines and legitimate industry practice; 2) there is no exemption for sharing information among affiliates or joint promotion partners; 3) the prohibition is not limited to personally identifiable information; and 4) it may be necessary for the company sponsoring the sweepstakes to share the names and information of entrants with its agencies or vendors retained to assist in the conduct or administration of the promotion." Possible Committee Amendment : In order to comport with the commitment to privacy values consistently taken by both Judiciary Committees of the Legislature as well as the author, the Committee may wish to amend the bill to delete the June 17th amendments to the bill that would have encroached upon the privacy interests of sweepstakes participants (at page 5, lines 11-23) such that the bill will read as follows: SB 1400 Page 7 (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 fromsharing orselling the names or addressespersonally identifiable informationof 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.Previous legislation . SB 1780 (Peace, Chapter 280, Statutes of 1998) prohibits sweepstakes solicitation materials from representing that a person is a prize winner unless that person has, in fact, won a prize. Also requires a prominent "no purchase necessary" statement, a copy of the official rules, and prohibits disadvantaging individuals in the contest not making a purchase. REGISTERED SUPPORT / OPPOSITION : Support AARP Consumer Action Consumer Federation of California California Senior Legislature Older Women's League of California Privacy Rights Clearinghouse Congress of California Seniors California Alliance for Retired Americans Gray Panthers California Alliance for Consumer Protection Opposition SB 1400 Page 8 California Chamber of Commerce Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334