South Carolina Legislature


 

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H 4119
Session 109 (1991-1992) 

H 4119 General Bill, By Haskins, Anderson, J.M. Baxley, J. Brown, Cato, Elliott, 
J.G. Felder, S.E. Gonzales, J.P. Harrelson, Harrison, Harvin, Keegan, 
H.H. Keyserling, Kirsh, Lanford, S.G. Manly, J.G. Mattos, Meacham, J. Rama, 
Riser, I.K. Rudnick, R. Smith, C.H. Stone, C.Y. Waites, C.C. Wells, Wilkins, 
J.B. Williams and Young-Brickell
 A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 15
 to Title 37 so as to enact the Prizes and Gifts Act requiring disclosure of
 information pertaining to contests and promotions including who is conducting
 the activity, conditions a consumer must meet to be eligible, and costs that
 must be incurred to receive the prize or gift; prohibiting use of
 notifications that resemble checks or invoices; and providing a civil cause of
 action, enforcement provisions, and exemptions.

   01/14/92  House  Introduced and read first time HJ-188
   01/14/92  House  Referred to Committee on Labor, Commerce and
                     Industry HJ-188
   02/12/92  House  Committee report: Favorable Labor, Commerce and
                     Industry HJ-4
   02/19/92  House  Read second time HJ-20
   02/20/92  House  Read third time and sent to Senate HJ-11
   02/25/92  Senate Introduced and read first time SJ-12
   02/25/92  Senate Referred to Committee on Banking and Insurance SJ-1



COMMITTEE REPORT

February 12, 1992

H. 4119

Introduced by REPS. Haskins, Rama, Wilkins, Cato, Harrison, Smith, Felder, Baxley, Wells, A. Young, D. Elliott, Harvin, Lanford, Anderson, Riser, Gonzales, Manly, J. Williams, Waites, Kirsh, Keegan, Rudnick, Mattos, Harrelson, Stone, J. Brown, Keyserling and Meacham

S. Printed 2/12/92--H.

Read the first time January 14, 1992.

THE COMMITTEE ON LABOR, COMMERCE AND INDUSTRY

To whom was referred a Bill (H. 4119), to amend the Code of Laws of South Carolina, 1976, by adding Chapter 15 to Title 37, etc., respectfully

REPORT:

That they have duly and carefully considered the same, and recommend that the same do pass:

THOMAS C. ALEXANDER, for Committee.

A BILL

TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 15 TO TITLE 37 SO AS TO ENACT THE PRIZES AND GIFTS ACT REQUIRING DISCLOSURE OF INFORMATION PERTAINING TO CONTESTS AND PROMOTIONS INCLUDING WHO IS CONDUCTING THE ACTIVITY, CONDITIONS A CONSUMER MUST MEET TO BE ELIGIBLE, AND COSTS THAT MUST BE INCURRED TO RECEIVE THE PRIZE OR GIFT; PROHIBITING USE OF NOTIFICATIONS THAT RESEMBLE CHECKS OR INVOICES; AND PROVIDING A CIVIL CAUSE OF ACTION, ENFORCEMENT PROVISIONS, AND EXEMPTIONS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 37 of the 1976 Code is amended by adding:

"CHAPTER 15

Prizes and Gifts

Section 37-15-10. This chapter may be cited as the Prizes and Gifts Act.

Section 37-15-20. As used in this chapter:

(1) `Anything of value', `item of value', or `item' means an item or service with monetary value.

(2) `Handling charge' means a charge, fee, or sum of money that is paid by a consumer to receive a prize, gift, or an item of value including, but not limited to, promotional fees, redemption fees, registration fees, or delivery costs.

(3) `Person' means an individual, corporation, trust, partnership, association, and any other legal entity.

Section 37-15-30. (A) No person, in connection with the sale, lease, or solicitation for the sale or lease of goods, property, or service, may represent that another person has won anything of value or is the winner of a contest, unless these conditions are met:

(1) The recipient of the prize, gift, or item of value must be given the prize, gift, or item of value without obligation.

(2) The prize, gift, or item of value must be delivered to the recipient at no expense to the recipient within ten days of the representation.

(B) The use of language that may lead a reasonable person to believe that the person has won a contest or anything of value including, but not limited to, `Congratulations', or `You have won', or `You are the winner of', is considered a representation of the type governed by this section.

Section 37-15-40. (A) No person, in connection with the sale, lease, or solicitation for sale or lease of goods, property, or service, may represent that another person has a chance to win or to receive a prize, gift, or item of value without clearly and conspicuously disclosing on whose behalf the contest or promotion is conducted and all material conditions that a participant must satisfy. In an oral solicitation all material conditions must be disclosed before requesting the consumer to enter into the sale or lease. In written material, immediately adjacent to the first identification of the prize, gift, or item of value to which it relates; or in a separate section entitled `Consumer Disclosure' with the title printed in no less than ten-point bold face type and the section containing only a description of the prize, gift, or item of value; and these disclosures must be stated:

(a) the actual retail value of each item or prize, which for purposes of this section are:

(i) the price at which substantial sales of the item were made in the area in which the offer was received within the last ninety days; or

(ii) the actual cost of the item of value, gift, or prize to the person on whose behalf the contest or promotion is conducted plus no more than seven hundred percent, but in no case may the cost exceed the person's good faith estimate of the appraised retail value;

(b) the actual number of each item, gift, or prize to be awarded; and

(c) the odds of receiving an item, gift, or prize.

(B) All disclosures required by this chapter to be in writing must comply with the following:

(1) all dollar values must be stated in arabic numerals and be preceded by a dollar sign.

(2) the number of each item, gift, or prize to be awarded and the odds of receiving an item, gift, or prize must be stated in arabic numerals and must be written in a manner that is clear and understandable.

(C) It is unlawful to notify a person that the person will receive a gift, prize, or item of value that has as a condition of receiving the gift, prize, or item of value the requirement that the person pay for or purchase, lease, or rent any goods or services, unless the nature of the charges to be incurred, including, but not limited to, a shipping charge or handling charge, have been clearly and conspicuously disclosed. The disclosure must be given:

(1) on the face of written materials; or

(2) before requesting or inviting the person to enter into the sale or lease in an oral notification.

(D) This section does not apply if:

(1) a participant is asked only to complete and mail, or deposit at a local retail commercial establishment, an entry blank obtainable locally or by mail, or to call in the entry by telephone; or

(2) a participant at no time is required to listen to a sales presentation or at no time is requested or required to pay for any merchandise, service, or item of value.

(E) Nothing in this section creates liability for an act by the publisher, owner, agent, or employee of a newspaper, periodical, radio station, television station, cable-television system, or other advertising medium arising out of the publication or dissemination of an advertisement or promotion governed by this section, when the publisher, owner, agent, or employee did not know that the advertisement or promotion violated this section.

Section 37-15-50. (A) No person may represent that another person has been specially selected in connection with the sale, lease, or solicitation for sale or lease of goods, property, or service, unless the selection process is designed to reach particular persons.

(B) The use of any language that may lead a reasonable person to believe that the person has been specially selected, including, but not limited to, `carefully selected', or `You have been selected to receive', or `You have been chosen', is considered a representation of the type governed by this section.

Section 37-15-60. In connection with a consumer transaction, no person may issue any writing that simulates or resembles:

(1) a check, unless the writing clearly and conspicuously discloses its true value and purpose, and the writing would not mislead a reasonable person; or

(2) an invoice, unless the intended recipient of the invoice has contracted for goods, property, or services for which the issuer seeks proper payment.

Section 37-15-70. (A) It is unlawful to notify a person that the person will receive a gift, prize, or item of value and that as a condition of receiving the gift, prize, or item of value the person will be required to pay for or purchase or lease, including rent, any goods or services, if:

(1) the shipping charges exceed:

(a) the cost of postage or the charge of a delivery service, in the business of delivering goods of like size, weight, and kind, for shipping the gift, prize, or item of value from the geographic area in which the gift, prize, or item of value is being distributed; or

(b) the exact amount for shipping the gift, prize, or item of value paid to an independent fulfillment house or an independent supplier, either of which is in the business of shipping goods for shippers other than the offeror of the gift, prize, or item of value; or

(2) the handling charge exceeds the lesser of five dollars or the actual cost of handling.

(B) This section applies to all offers of prizes, gifts, or items of value covered by this chapter.

Section 37-15-80. A consumer who suffers loss by reason of a violation of this chapter may bring a civil action to enforce the provisions and, if successful in the action, shall recover reasonable attorney's fees and court costs incurred by bring the action.

Section 37-15-90. A violation of this chapter constitutes a prohibited practice under the provisions of the Unfair Trade Practices Act and is subject to any of the enforcement provisions of that act.

Section 37-15-100. Sections 37-15-40 through 37-15-70 do not apply to the sale, purchase, or solicitation or representation in connection therewith of goods from a catalog or of books, recordings, videocassettes, periodicals, and similar goods through a membership group or club that is regulated by the Federal Trade Commission concerning the use of negative option plans by sellers in commerce or through a contractual plan or arrangement, such as a continuity plan, subscription arrangement, or a single sale or purchase series arrangement, under which the seller ships goods to a consumer who has consented in advance to receive the goods, and after examination of the goods, the recipient of the goods is given the opportunity to receive a full refund of charges for the goods or a proportionate refund for an unused portion of the goods, upon return of the goods or the unused portion, undamaged."

SECTION 2. This act takes effect upon approval by the Governor.

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