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92_SB0797ham001
LRB9200606LDcsam02
1 AMENDMENT TO SENATE BILL 797
2 AMENDMENT NO. . Amend Senate Bill 797 by replacing
3 everything after the enacting clause with the following:
4 "Section 1. Short title. This Act may be cited as the
5 Prizes and Gifts Act.
6 Section 5. Legislative intent. The General Assembly
7 finds that deceptive promotional advertising of prizes is a
8 matter vitally affecting the public interest in this State.
9 Section 10. Definitions. As used in this Act:
10 "Catalog seller" means an entity (and its subsidiaries)
11 or a person at least 50% of whose annual revenues are derived
12 from the sale of products sold in connection with the
13 distribution of catalogs of at least 24 pages, which contain
14 written descriptions or illustrations and sale prices for
15 each item of merchandise and which are distributed in more
16 than one state with a total annual distribution of at least
17 250,000.
18 "Person" means a corporation, partnership, limited
19 liability company, sole proprietorship, or natural person.
20 "Prize" means a gift, award, or other item or service of
21 value that is offered or awarded to a participant in a real
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1 or purported contest, competition, sweepstakes, scheme, plan,
2 or other selection process that involves an element of
3 chance.
4 "Retail value" of a prize means:
5 (1) a price at which the sponsor can substantiate
6 that a substantial quantity of the item or service
7 offered as a prize has been sold to the public; or
8 (2) if the sponsor is unable to satisfy the
9 requirement in subdivision (1), no more than 3 times the
10 amount the sponsor paid for the prize in a bona fide
11 purchase from an unaffiliated seller.
12 "Sponsor" means a person on whose behalf a promotion is
13 conducted to promote or advertise goods, services, or
14 property of that person. "Sponsor" includes a person who
15 conducts a promotion on behalf of another sponsor.
16 Section 15. Application of Act. Except as otherwise
17 provided in this Act, this Act applies only to a written
18 promotional offer that is:
19 (1) made to a person in this State;
20 (2) used to induce or invite a person to come to
21 this State to claim a prize, attend a sales presentation,
22 meet a promoter, sponsor, salesperson, or agent, or
23 conduct any business in this State; or
24 (3) used to induce or invite a person to contact by
25 any means a promoter, sponsor, salesperson, or agent in
26 this State.
27 Section 20. No payment required.
28 (a) No sponsor may require a person in this State to pay
29 the sponsor money as a condition of awarding the person a
30 prize, or as a condition of allowing the person to receive,
31 use, compete for, or obtain information about a prize.
32 (b) A sponsor shall not represent that a person has won
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1 or unconditionally will be the winner of a prize or use
2 language that may lead a person to believe he or she has won
3 a prize, unless all of the following conditions are met:
4 (1) the person is given the prize without
5 obligation;
6 (2) the person is notified at no expense to him or
7 her within 15 days of winning the prize; and
8 (3) the representation is not false, deceptive, or
9 misleading.
10 Section 25. Disclosures required. A written promotional
11 prize offer must contain each of the following in a clear and
12 conspicuous statement at the onset of the offer:
13 (1) the true name or names of the sponsor and the
14 address of the sponsor's actual principal place of
15 business;
16 (2) the retail value of each prize the person
17 receiving the notice has been selected to receive or may
18 be eligible to receive;
19 (3) a disclosure that no purchase is necessary to
20 enter such written promotional offer;
21 (4) a disclosure that a purchase will not improve
22 the person's chances of winning with an entry;
23 (5) a statement of the person's odds of receiving
24 each prize identified in the notice;
25 (6) any requirement that the person pay the actual
26 shipping or handling fees or any other charges to obtain
27 or use a prize, including the nature and amount of the
28 charges;
29 (7) if receipt of the prize is subject to a
30 restriction, a description of the restriction;
31 (8) any limitations on eligibility; and
32 (9) if a sponsor represents that the person is a
33 "finalist", has been "specially selected", is in "first
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1 place", or is otherwise among a limited group of persons
2 with an enhanced likelihood of receiving a prize, the
3 written prize notice must contain a statement of the
4 maximum number of persons in the group or purported group
5 with this enhanced likelihood of receiving a prize.
6 Section 30. Prize award required. A sponsor who
7 represents that a person has been awarded a prize shall, not
8 later than 30 days after making the representation, provide
9 the person with:
10 (1) the prize;
11 (2) a voucher, certificate, or other document
12 giving the person the prize; or
13 (3) the retail value of the prize, as stated in the
14 written prize notice, in the form of cash, a money order,
15 or a certified check.
16 Section 32. Advertising media exempt. Nothing in this
17 Act creates liability for acts by the publisher, owner,
18 agent, or employee of a newspaper, periodical, radio station,
19 television station, cable television system, or other
20 advertising medium arising out of the publication or
21 dissemination of a solicitation, notice, or promotion
22 governed by this Section unless the publisher, owner agent,
23 or employee had knowledge that the solicitation, notice, or
24 promotion violated the requirements of this Section, or had a
25 financial interest in the solicitation, notice, or promotion.
26 Section 35. Exemptions. This Act does not apply to
27 solicitations or representations in connection with:
28 (1) the sale or purchase of books, recordings,
29 video cassettes, periodicals, and similar goods through
30 a membership group or club that is regulated by the
31 Federal Trade Commission under Code of Federal
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1 Regulations, Title 16, part 425.1, concerning the use of
2 negative option plans by sellers in commerce;
3 (2) the sale or purchase of goods ordered through a
4 contractual plan or arrangement such as a continuity
5 plan, subscription arrangement, or a single sale or
6 purchase series arrangement under which the seller ships
7 goods to a consumer who has consented in advance to
8 receive the goods and after the receipt of the goods is
9 given the opportunity to examine the goods and to receive
10 a full refund of charges for the goods upon return of the
11 goods in an undamaged condition;
12 (3) sales by a catalog seller;
13 (4) the State lottery created and regulated under
14 the Illinois Lottery Law;
15 (5) the sale or purchase of membership camping
16 contracts in accordance with the Illinois Membership
17 Campground Act; or
18 (6) the sale or purchase of time-shares created and
19 regulated under the Illinois Real Estate Time-Share Act.
20 Section 40. Violations.
21 (a) Nothing in this Act may be construed to permit an
22 activity otherwise prohibited by law.
23 (b) Enforcement by consumer. A consumer who suffers
24 loss by reason of any intentional violation of any provision
25 of this Act may bring a civil action to enforce that
26 provision. A consumer who is successful in such an action
27 shall recover the greater of $500 or twice the amount of the
28 pecuniary loss, reasonable attorney's fees, and court costs
29 incurred by bringing such action.
30 (c) Enforcement by Attorney General or State's Attorney.
31 Violation of any of the provisions of this Act is an unlawful
32 practice under the Consumer Fraud and Deceptive Business
33 Practices Act. All remedies, penalties, and authority
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1 granted to the Attorney General or State's Attorney by that
2 Act shall be available to him or her for the enforcement of
3 this Act.
4 Section 90. Severability. If any provision of this Act
5 or the application thereof to any person or circumstance is
6 held invalid, the invalidity shall not affect other
7 provisions or applications of the Act which can be given
8 effect without the invalid provision or application and to
9 this end the provisions of this Act are severable.".