CHAPTER 621. CONTESTS AND GIFT GIVEAWAYS

State Codes and Statutes

Statutes > Texas > Business-and-commerce-code > Title-13-contests-and-other-promotions > Chapter-621-contests-and-gift-giveaways

BUSINESS AND COMMERCE CODE

TITLE 13. CONTESTS AND OTHER PROMOTIONS

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 621.001. SHORT TITLE. This chapter may be cited as the

Contest and Gift Giveaway Act.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.002. CONSTRUCTION OF CHAPTER. This chapter shall be

interpreted to provide the maximum disclosure to, and fair

treatment of, a person who enters a contest or gift giveaway

through which the person is solicited to attend a sales

presentation.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.003. DEFINITIONS. (a) In this chapter:

(1) "Contest" means a promotional device in which:

(A) a person is offered, as an inducement to attend a sales

presentation, a chance to win or receive a prize by complying

with specified entry requirements;

(B) the winner or recipient of a prize is determined by random

selection; and

(2) "Contest period" means the duration of a contest from the

beginning date to the ending date.

(3) "Drawing" means a contest in which the recipient of a prize

is determined from all of the entries received.

(4) "Entry form" means a card, letter, entry blank, token, or

similar device that identifies a contestant by:

(A) name;

(B) number, letter, or symbol; or

(5) "Gift" means an item of value that is offered, transferred,

or given to a person as an inducement to attend a sales

presentation but that is not offered, transferred, or awarded

through a contest. The term does not include a manufacturer's

rebate or discount available to the public.

(6) "Major prize" means a prize that has an actual unit cost to

the offeror of at least $250.

(7) "Matched contest" means a contest in which:

(A) the winning numbers are preselected, printed on an entry

form, and distributed to the public; and

(B) the numbers printed on the entry forms are subsequently

matched with the list of winning numbers at a sales location to

determine prize eligibility.

(8) "Minor prize" means a prize that:

(A) has an actual unit cost to the offeror of less than $250;

and

(B) is transferred to a person who:

(i) attends a sales presentation; and

(ii) is not the winner of a major prize.

(9) "Odds of winning" means a ratio in which:

(A) the numerator equals the actual number of units of an

identified prize to be given away during a contest period; and

(B) the denominator equals the number of entry forms distributed

or reasonably anticipated to be distributed during the contest

period.

(10) "Offeror" means a person who solicits another person to

attend a sales presentation.

(11) "Person" includes an individual, a corporation, a firm, and

an association.

(12) "Prize" means an item of value that is offered, awarded, or

given to a person through a contest. The term does not include a

manufacturer's rebate or discount available to the public.

(13) "Sales presentation" means a transaction or occurrence in

which a consumer is solicited to execute a contract that

obligates the consumer to purchase goods or services as defined

by Subchapter E, Chapter 17, including:

(A) a timeshare interest as defined by Section 221.002, Property

Code; and

(B) a membership interest as defined by Section 222.003,

Property Code.

(14) "Winning number" includes a letter or other identifying

symbol.

(b) For purposes of Subsection (a)(1)(B), a determination made

by random selection does not include the method used by an

offeror to identify a person who will be notified of an offer to

win a prize.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.004. INAPPLICABILITY OF CHAPTER TO CERTAIN SALES

PRESENTATIONS. This chapter does not apply to a sales

presentation that is conducted in conjunction with a business

seminar, trade show, convention, or other gathering if only

representatives of business entities who attend the seminar,

trade show, convention, or gathering are solicited to attend.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.005. DETERMINATION OF RETAIL VALUE OF PRIZE OR GIFT.

(a) The retail value of an item offered as a prize or gift is

the price at which at least two principal retail outlets in this

state have made a substantial number of sales of an identical

item to members of the public during the six months preceding the

offering of the prize or gift. The item sold by the principal

retail outlets must be from the same manufacturer, and be of the

same brand, model, and type, as the item offered as a prize or

gift.

(b) If a substantial number of sales of a particular item

offered as a prize or gift have not been made in this state

during the six months preceding the offering of the item

described in the solicitation or if the offeror elects, the

retail value of the item is the actual cost of the item to the

offeror, net of any rebates, plus 200 percent.

recreational activity, the retail value is the retail sales price

of that lodging, airfare, trip, or recreational activity to a

member of the public who is not involved in a promotional or

other discount transaction.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.006. DEPOSIT REQUIREMENTS. (a) In this section,

"refundable deposit" means a deposit that is required to be

returned in its entirety to a consumer if:

(1) it is paid by the consumer for a reservation used by the

consumer; or

(2) the consumer provides at least five possible reservation

dates, none of which can be confirmed.

(b) An offeror may require a refundable deposit for a gift or

prize involving lodging, airfare, a trip, or a recreational

activity if the deposit requirement is fully, clearly, and

conspicuously disclosed.

clearly and conspicuously disclosed in at least 10-point type on

the solicitation.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER B. GIFT OFFERS

Sec. 621.051. APPLICABILITY OF SUBCHAPTER. This subchapter

applies to a person who uses a gift as part of an advertising

plan or program.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.052. REQUIRED DISCLOSURES RELATING TO GIFTS. (a) An

offeror who notifies a person that the person will receive a gift

shall, at the time of the notification, clearly and conspicuously

disclose:

(1) that attendance at a sales presentation is required;

(2) the approximate duration of the sales presentation; and

(3) a description of the product or service being sold.

(b) A person shall disclose:

(1) the retail value of a gift; and

(2) clearly and conspicuously in at least 10-point type that

airfare, lodging, or both are not included as part of a gift that

is a trip or recreational activity to the extent that either or

both are not included.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.053. PROHIBITED ACTS RELATING TO GIFTS. A person may

not:

(1) use the term "gift" or a similar term in a false,

misleading, or deceptive manner;

(2) directly represent or imply that a gift promotion is a

contest;

(3) in a gift promotion, use the term:

(A) "finalist," "major award winner," "grand prize recipient,"

"winner," "won," "will win," or "will be awarded" or use words or

phrases of similar meaning that imply that a person is being

solicited to enter or participate in a contest; or

(B) "sweepstakes" or "contest" or use words or phrases of

similar meaning that imply that a person is being solicited to

enter or has won a contest;

(4) represent that a gift has a sponsor, approval,

characteristic, ingredient, use, benefit, quantity, status,

affiliation, connection, or identity that the gift does not have;

(5) represent that a gift is of a particular standard, quality,

grade, style, or model if the gift is of another; or

(6) use a word or phrase that:

(A) simulates or causes confusion with a document issued by an

officer of a court or with the seal or name of a real or

fictitious governmental entity; or

(B) implies that the offeror is sending a court document or

legal document or that the offeror is a governmental entity.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.054. LIMITATIONS ON CONDITIONING GIFT ON PAYMENT OF

CONSIDERATION, CHARGE, OR EXPENSE. (a) In this section,

"redemption or shipping fee" means any kind of consideration paid

to the offeror. The term does not include a refundable deposit.

(b) Except as provided by Subsection (c), an offeror may notify

a person that the person will receive a gift, the receipt of

which is conditioned on the person paying consideration of any

kind, paying a charge, or incurring an expense, only if the

offeror fully, clearly, and conspicuously discloses the

consideration, charge, or expense.

gift regardless of whether full disclosure of the fee is made.

(d) A gift is not prohibited in a legitimate trade promotion if

the advertising regarding the promotion fully discloses any

contractual obligation to be assumed to qualify for the gift.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.055. LIMITATIONS ON CONDITIONING GIFT ON PURCHASE. (a)

An offeror may notify a person that the person will receive a

gift, the receipt of which is conditioned on the person

purchasing a good or service, only if at the time of notification

the offeror clearly and conspicuously discloses that purchase of

a good or service is required.

(b) A gift is not prohibited in a legitimate trade promotion if

the advertising regarding the promotion fully discloses any

requirement of a purchase to be made to qualify for the gift.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER C. MATCHED CONTESTS AND DRAWINGS

Sec. 621.101. APPLICABILITY OF SUBCHAPTER. This subchapter

applies to a person who uses a contest as part of an advertising

plan or program.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.102. REQUIRED DISCLOSURES RELATING TO PRIZES GENERALLY.

An offeror who notifies a person that the person has won a

prize, will receive a prize, or has a chance to win or receive a

prize shall, at the time of the notification, clearly and

conspicuously disclose:

(1) that attendance at a sales presentation is required;

(2) the approximate duration of the sales presentation; and

(3) a description of the product or service being sold.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.103. REQUIREMENTS FOR MATCHED CONTEST. (a) The

identity and number of the major prizes to be awarded in a

matched contest must be:

(1) determined before the contest begins; and

(2) disclosed on each entry form distributed.

(b) Each major prize identified on an entry form for a matched

contest shall be awarded.

calendar months.

(d) If, during the contest period for a matched contest, a

winning number is not presented or matched for a major prize, the

offeror shall conduct a drawing from the names of those

individuals who attended a sales presentation during the contest

period. The offeror shall conduct the drawing not later than the

60th day after the date the contest period ends. Each major

prize identified on the entry forms distributed during the

contest period that was not previously awarded shall be awarded

at the time of the drawing.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.104. REQUIRED DISCLOSURES RELATING TO MATCHED CONTEST.

(a) A person who uses a matched contest shall clearly and

conspicuously disclose in writing in the offer:

(1) that attendance at a sales presentation is required;

(2) the name and street address of the person who is soliciting

attendance at a sales presentation;

(3) a description of the product or service being sold;

(4) each requirement, restriction, qualification, and other

condition that must be satisfied for a person to enter the

contest, including:

(A) any deadline by which the person must visit the location or

attend the sales presentation to qualify to receive a prize; and

(B) the approximate duration of the sales presentation;

(5) a statement of the odds of winning each prize offered,

expressed as a ratio in Arabic numerals;

(6) the geographical area or states in which the contest will be

conducted;

(7) the beginning and ending dates of the contest period;

(8) the identity and address of each person responsible for

awarding prizes;

(9) that all unclaimed prizes will be awarded by a drawing and

the date of the drawing; and

(10) all other rules and terms of the contest.

(b) A person engaged in the preparation, promotion, sale,

distribution, or use of a matched contest shall disclose:

(1) the retail value of a prize; and

(2) clearly and conspicuously in at least 10-point type that

airfare, lodging, or both are not included as part of a prize

that is a trip or recreational activity to the extent that either

or both are not included.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.105. PROHIBITED ACTS RELATING TO MATCHED CONTEST. A

person engaged in the preparation, promotion, sale, distribution,

or use of a matched contest may not:

(1) use the term "prize" or a similar term in a false,

misleading, or deceptive manner;

(2) represent in soliciting a person to enter or participate in

the contest that the person is a "finalist," "major award

winner," "grand prize recipient," or "winner" or that a person

has "won," "will win," or "will be awarded" or use words or

phrases of similar meaning unless the representation is true;

(3) represent that a prize has a sponsor, approval,

characteristic, ingredient, use, benefit, quantity, status,

affiliation, connection, or identity that the prize does not

have;

(4) represent that a prize is of a particular standard, quality,

grade, style, or model if the prize is of another;

(5) misrepresent the odds of winning a prize;

(6) misrepresent the rules or terms of participation in the

contest;

(7) represent that:

(A) a number, ticket, coupon, symbol, or entry form confers or

will confer an advantage on a person that another person does not

have or has a value that other entries do not have; or

(B) a person is more likely to win a prize than another person;

(8) fail to obtain a person's express written consent before

using that person's name for a promotional purpose;

(9) use or distribute simulated checks or currency or other

simulated items of value unless the words

"SPECIMEN--NON-NEGOTIABLE" are clearly and conspicuously printed

on those items in at least 18-point type; or

(10) use a word or phrase that:

(A) simulates or causes confusion with a document issued by an

officer of a court or with the seal or name of a real or

fictitious governmental entity; or

(B) implies that the offeror is sending a court document or

legal document or that the offeror is a governmental entity.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.106. REQUIRED DISCLOSURES RELATING TO DRAWINGS. (a) A

person may not use a drawing unless the offeror clearly and

conspicuously discloses in writing in the offer:

(1) a statement of the odds of winning each prize offered,

expressed as a ratio in Arabic numerals, except as provided by

Subsection (c);

(2) the exact prizes to be awarded in the drawing;

(3) the beginning and ending dates of the contest period;

(4) the date the drawing will occur; and

(5) the location at which the drawing will occur.

(b) A person engaged in the preparation, promotion, sale,

distribution, or use of a drawing shall disclose:

(1) the retail value of a prize; and

(2) clearly and conspicuously in at least 10-point type that

airfare, lodging, or both are not included in a prize that is a

trip or recreational activity to the extent that either or both

are not included.

the total number of entries is not known, the offeror shall make

a statement to the effect that the odds of winning depend on the

total number of entries received.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.107. PROHIBITED ACTS RELATING TO DRAWINGS. A person

engaged in the preparation, promotion, sale, distribution, or use

of a drawing may not:

(1) use the term "prize" or a similar term in a false,

misleading, or deceptive manner;

(2) fail to provide the prize as represented at the conclusion

of the drawing;

(3) represent that a prize has a sponsor, approval,

characteristic, ingredient, use, benefit, quantity, status,

affiliation, connection, or identity that the prize does not

have;

(4) represent that a prize is of a particular standard, quality,

grade, style, or model if the prize is of another;

(5) misrepresent the odds of winning a prize; or

(6) misrepresent the rules or terms of participation in the

drawing.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.108. CONDITIONING PRIZE ON PAYMENT OF CONSIDERATION,

CHARGE, OR EXPENSE PROHIBITED; EXCEPTIONS. (a) Except as

provided by Subsection (b), an offeror may not notify a person

that the person has won a prize, will receive a prize, or has a

chance to win or receive a prize if the receipt of the prize is

conditioned on the person paying consideration of any kind,

paying a charge, or incurring an expense.

(b) An offeror may notify a person that the person has won a

prize, will receive a prize, or has a chance to receive a prize

that is conditioned on the person paying:

(1) expenses incurred for travel to and from the sales location;

(2) a refundable deposit authorized under Section 621.006.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.109. CONDITIONING PRIZE ON PURCHASE PROHIBITED. An

offeror may not notify a person that the person has won a prize,

will receive a prize, or has a chance to win or receive a prize

if the receipt of the prize is conditioned on the person

purchasing a good or service unrelated to the prize.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER D. FULFILLMENT OF GIFT AND PRIZE OFFERS

Sec. 621.151. AVAILABILITY AND AWARDING OF GIFT OR PRIZE. (a)

Subject to Sections 621.152-621.154, an offeror shall:

(1) in a gift offer, provide each gift as represented to each

person who attends a sales presentation; or

(2) in a matched contest, award each prize as represented on the

entry form to each person who presents a winning entry.

(b) An offeror shall have available at the sales location a

sufficient quantity of:

(1) each gift to meet the reasonable anticipated response to the

offer; or

(2) each prize to meet the reasonable anticipated number of

prize winners.

may not provide a coupon book, a discount book, or a certificate

or voucher that entitles the holder to redeem the certificate or

voucher for a gift or prize required to be available under this

section.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.152. RAINCHECK REQUIREMENTS. Subject to Section

621.153(a), if the response to an offer exceeds the number of

gifts or major or minor prizes, as applicable, available at the

sales location, the offeror, at the time of the visit or, if a

sales presentation is required, at the conclusion of the sales

presentation, shall tender to the recipient of the offer a

raincheck for the gift or prize represented in the offer. Except

as provided by Section 621.153(b), the offeror shall send that

exact gift or prize to the recipient, without cost to the

recipient, not later than the 14th day after the date the

recipient visits the sales location or attends the sales

presentation. The offeror shall obtain a return receipt from the

shipper verifying that the gift or prize was delivered to the

recipient.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.153. ISSUANCE OF CHECK OR MONEY ORDER IN LIEU OF GIFT

OR MINOR PRIZE. (a) An offeror who knows at the time a

recipient of an offer visits a sales location or attends a sales

presentation that the gift or minor prize will not be available

within 14 days of the date of the visit or attendance shall at

the time of the visit or at the conclusion of the sales

presentation tender to the recipient, by cash or check, the

amount of $100.

(b) If, after the expiration of the 14th day after the date the

offeror issued a raincheck under Section 621.152 for a gift or

minor prize, the offeror has not sent the gift or prize, the

offeror shall send by mail to the recipient of the raincheck a

check or money order in the amount of $100 payable to the

recipient. The offeror shall:

(1) send the check or money order not later than the 15th day

after the date the offeror issued the raincheck; and

(2) obtain a return receipt from the United States Postal

Service that verifies that the check or money order was delivered

to the recipient.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.154. CERTIFICATE PERMITTED FOR LODGING, AIRFARE, TRIP,

OR RECREATIONAL ACTIVITY. An offeror may give the recipient of a

gift or prize involving lodging, airfare, a trip, or a

recreational activity a certificate that evidences the

recipient's right to the gift or prize.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER E. CONTEST RECORDS

Sec. 621.201. APPLICABILITY OF SUBCHAPTER. This subchapter

applies to a person who uses a contest as part of an advertising

plan or program.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.202. REQUIRED RECORDS FOR CONTESTS OTHER THAN DRAWINGS.

(a) For each contest other than a drawing, the offeror shall

maintain until the second anniversary of the date the last prize

was awarded:

(1) records of the identity and address of each person who is

responsible for developing, creating, sponsoring, or implementing

any part of the advertising plan or program;

(2) records that show that the winning numbers have been

deposited in the mail or otherwise made available to recipients

in accordance with the odds statement provided under Section

621.104(a);

(3) a copy of each contest solicitation;

(4) records adequate to determine:

(A) the name and address of each contestant;

(B) the approximate date each contestant was sent the

solicitation used in the contest;

(D) the date each major prize was awarded;

(E) the name, brand, type, model number, and manufacturer of

each prize offered;

(F) the method of computing the retail value of each prize;

(G) the method of selecting major prize winners;

(H) the name and address of each major prize winner; and

(I) the facts on which each representation or disclosure made in

connection with the contest was based and from which the validity

of the representation or disclosure can be determined.

(b) Postal receipt records, affidavits of mailing, and a list of

winners or recipients of the major prizes satisfy the

requirements of Subsection (a)(2).

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.203. REQUIRED RECORDS FOR DRAWINGS. (a) For each

drawing, the offeror shall maintain until the second anniversary

of the date the last major prize was awarded:

(1) records of the identity and address of each person who is

responsible for developing, creating, sponsoring, or implementing

any part of the advertising plan or program;

(2) records that show that the winning entry for each major

prize was selected entirely at random from all of the entries

received;

(3) a copy of each contest solicitation; and

(4) records adequate to determine:

(A) the total number of entries;

(B) the number of major prizes awarded;

(D) the name, brand, type, model number, and manufacturer of

each prize offered;

(E) the method of computing the retail value of each prize;

(F) the method of selecting winners; and

(G) the names and addresses of the winners.

(b) An affidavit from the person who conducted the drawing and a

list of winners or recipients of the major prizes satisfies the

requirements of Subsection (a)(2).

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.204. DISCLOSURE OF MAJOR PRIZES AND WINNERS ON REQUEST.

A person who conducts a contest shall, at the end of the contest

period, provide to any person who requests the information:

(1) the names of all major prize winners; and

(2) the prizes won by each winner.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.205. RECORDS AVAILABLE TO ATTORNEY GENERAL. A person

who receives a written request from the attorney general for the

records required under this subchapter shall make the records

available to the attorney general not later than the 30th day

after the date the person received the request.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

SUBCHAPTER F. ENFORCEMENT

Sec. 621.251. CRIMINAL PENALTY. (a) A person commits an

offense if the person knowingly violates this chapter.

(b) Except as provided by Subsection (c), an offense under this

section is a Class B misdemeanor.

(1) a Class A misdemeanor if it is shown at the trial of the

defendant that:

(A) the defendant has previously been convicted of an offense

under this section; and

(B) the offense for which the defendant is on trial was

committed not later than the fifth anniversary of the date of the

previous conviction; or

(2) a third degree felony if it is shown at the trial of the

defendant that:

(A) the defendant has previously been twice convicted of an

offense under this section; and

(B) the offense for which the defendant is on trial was:

(i) intentional; and

(ii) committed not later than the fifth anniversary of the

earlier of the dates of two previous convictions.

(d) Subsection (c)(2) does not apply to a violation of

Subchapter D.

(e) A person may not be prosecuted for more than one offense

involving the same promotion regardless of whether that promotion

is mailed or distributed to more than one person or is used at

more than one location.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

Sec. 621.252. DECEPTIVE TRADE PRACTICE. A violation of this

chapter is a deceptive trade practice in addition to the

practices described by Subchapter E, Chapter 17, and is

actionable under that subchapter.

Added by Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.01, eff. April 1, 2009.

State Codes and Statutes

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