66-32-133 - Prize or gift promotional offers Unlawful acts. - Tennessee Statutes

66-32-133. Prize or gift promotional offers Unlawful acts.

The following unfair acts or practices undertaken by, or omissions of, any person in the operation of any prize or gift promotional offer, by any means, including, but not limited to, by mail, by telephone, by advertisement or in person, for a time-share project are prohibited:

     (1)  Failing to clearly and conspicuously state the name and street address of the person making the offer;

     (2)  Representing or leading a person to believe that the person is or could be a winner if the person has not won or is not eligible to win;

     (3)  Representing or leading a person to believe that the person has been “selected” or is otherwise part of a select or special group when the person has not been selected or is not part of a select or special group;

     (4)  Representing that a person has won or could win a prize, or will receive a gift, or thing of value or has been selected, or is eligible, to win a prize, or receive a gift, or thing of value if the receipt of the prize, or gift, or thing of value is conditioned upon the person listening to or observing a sales promotional effort, making a purchase, or incurring any monetary obligation unless it is clearly and conspicuously disclosed, at the time of the initial offer, contact, or notification of the prize or gift, or thing of value that an attempt will be made to induce the consumer or person to incur a monetary obligation, including the amount of any monetary obligation;

     (5)  Failing to clearly and conspicuously disclose next to each prize, gift, or thing of value offered or any product offered for sale through the promotional plan the item's approximate verifiable retail value, which means the price at which the person offering the item can substantiate that a substantial number of these items have been sold at retail by another person or, in the event such substantiation is unavailable, nor more than three (3) times the amount actually paid by the sponsor or promoter for the item;

     (6)  Representing that the prize, gift, or thing of value offered or any product offered for sale through the promotional plan possesses particular features or benefits, if it does not, or is of a particular standard, quality, grade, or model, if it is of another;

     (7)  Failing to clearly and conspicuously disclose next to each prize, gift, or thing of value offered, a statement of odds, if applicable, in Arabic numerals, of receiving each item offered, and a statement, if applicable, that those offers are not exclusive to the above-named person and whether all prizes or gifts will be awarded;

     (8)  Making the receipt of an offered prize or gift contingent upon the consent of individual winners or recipients to allow their names to be used for promotional purposes, or failing to obtain the express written or oral consent of individual winners or recipients before their names are used for a promotional purpose in connection with the mailing to a third person;

     (9)  Refusing to disclose or make available, upon request, the names of the recipients of any prizes or gifts within the geographic area wherein the promotional offers were made;

     (10)  (A)  Failing to clearly and conspicuously disclose in any initial offer, at a minimum, the following:

                (i)  A general description of the types and categories of any restrictions, qualifications, or other conditions, that must be satisfied before the person is entitled to receive or use the prize, gift, or thing of value or product or service offered;

                (ii)  The approximate total of all costs, fees, or other monetary obligations that must be satisfied before the consumer or person is entitled to receive or use the prize, gift, or thing of value or product or service offered; and

                (iii)  That the details and an explanation of all restrictions, qualifications or other conditions of the offer shall be provided prior to the acceptance of the offer; or

          (B)  Failing to clearly and conspicuously state verbally, or upon request, in writing, before an offer can be accepted all restrictions, qualifications, monetary obligations, and other conditions that must be satisfied before the person is entitled to receive or use the prize, gift, or thing of value or product or service offered, including:

                (i)  Any deadline by which the recipient must visit the business, attend or listen to a sales presentation or otherwise respond in order to receive the prize, gift, or thing of value or product or service offered;

                (ii)  The date or dates on or before which the prize, gift or thing of value, product or service offered will terminate or expire and, if applicable, when the prizes will be awarded;

                (iii)  The approximate duration of any mandatory sales presentation or tour, if applicable;

                (iv)  Any other conditions, such as a minimum or maximum age qualification, any financial qualification, or requirement that, if the recipient is married, both spouses must be present or respond in order to receive the prize, gift or thing of value or product or service offered; and

                (v)  All other material rules, terms, restrictions, and conditions of the offer or promotional program including, but not limited to, any promotional service, handling, shipping, delivery, freight, postage or processing fees, charges, or other extra costs for the receipt or use of the prize, gift, or thing of value or product or service offered; provided that the requirements of this subdivision shall not be construed to require that foreign tax rates be included;

     (11)  Misrepresenting in any manner the rules, terms, restrictions, monetary obligation, or conditions of participation in the promotional plan or offer;

     (12)  Failing to award and distribute the prize, gift, or thing of value or product or service offered in accordance with the rules, terms, and conditions of the offer or promotional program as stated or disclosed in accordance with subdivisions (1)-(11); and

     (13)  (A)  Failing to award and distribute at least one (1) of each prize or gift of the value and type represented in the promotional program by the day and year specified in the promotion. When a promotion promises the award of a prescribed number of each prize, such number of prizes shall be awarded by the date and year specified in the promotion. For purposes of this subdivision (13)(A), distribution of cash shall be equivalent to distribution of a gift or prize, and a qualified recipient shall be allowed to choose either the gift or prize or cash in an amount equal to the cost of the gift or prize only if the gift or prize is not delivered to a qualified recipient within seventy-two (72) hours of the time the recipient would have been entitled to the gift or prize.

          (B)  Such choice shall be disclosed to the recipient at the time of the initial offering.

[Acts 1983, ch. 210, § 9; 1991, ch. 81, §§ 1, 2; 1991, ch. 84, § 1; 1993, ch. 230, § 1.]