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:







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             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,  







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               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,








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               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  







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            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  







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          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:
           







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           (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 or addresses  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.  
           
          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 







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          California Chamber of Commerce


           Analysis Prepared by  :  Drew Liebert / JUD. / (916) 319-2334