TITLE XXXI
TRADE AND COMMERCE
Chapter 358-O
PRIZES AND GIFTS ACT
Section 358-O:1
358-O:1 Short Title. –
This chapter may be cited as the "Prizes and Gifts Act."
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:2
358-O:2 Definitions. –
In this chapter:
I. "Anything of value," "item of value" or "item" means any item or service with monetary value.
II. "Handling charge" means any charge, fee or sum of money which is paid by a consumer to receive a prize, gift or any item of value including, but not limited to, promotional fees, redemption fees, registration fees or delivery costs.
III. "Person" means any natural person, corporation, trust, partnership, association and any other legal entity.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:3
358-O:3 Representation of Having Won a Prize, Gift or Any Item of Value. –
I. No person shall, in connection with the sale or lease or solicitation for the sale or lease of goods, property or service, represent that another person has won anything of value or is the winner of a contest, unless all of the following conditions are met:
(a) The recipient of the prize, gift or item of value shall be given the prize, gift or item of value without obligation; and
(b) The prize, gift or item of value shall be delivered to the recipient at no expense to the recipient, within 10 days of the representation.
II. The use of language that may lead a reasonable person to believe he has won a contest or anything of value, including, but not limited to, "Congratulations," or "You have won," or "You are the winner of," shall be considered a representation of the type governed by this section.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:4
358-O:4 Representation of Eligibility to Win or to Receive a Prize, Gift or Item of Value. –
I. No person shall, in connection with the sale or lease or solicitation for sale or lease of goods, property or service, 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, as well as all material conditions which a participant must satisfy. In an oral solicitation all material conditions shall be disclosed prior to requesting the consumer to enter into the sale or lease. Additionally, in any written material covered by this section, each of the following shall be clearly and prominently disclosed:
(a) Immediately adjacent to the first identification of the prize, gift or item of value to which it relates; or
(b) In a separate section entitled "Consumer Disclosure" which title shall be printed in no less than 10-point bold face type and which section shall contain only a description of the prize, gift or item of value and the disclosures outlined in subparagraphs (1), (2) and (3):
(1) The actual retail value of each item or prize, which for purposes of this section shall be:
(i) the price at which substantial sales of the item were made in the area in which the offer was received within the last 90 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 700 percent, but in no case shall it exceed such person's good faith estimate of the appraised retail value;
(2) The actual number of each item, gift or prize to be awarded; and
(3) The odds of receiving each item, gift or prize.
II. All disclosures required by this chapter to be in writing shall comply with the following:
(a) All dollar values shall be stated in arabic numerals and be preceded by a dollar sign ($).
(b) The number of each item, gift or prize to be awarded and the odds of receiving each item, gift or prize shall be stated in arabic numerals and shall be written in a manner which is clear and understandable.
III. It shall be unlawful to notify a person that such 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 such person pay any money, or purchase, lease or rent any goods or services, unless there shall have been clearly and conspicuously disclosed the nature of the charges to be incurred, including, but not limited to, any shipping charge and handling charges and charges incurred through the use of 900 number telephone calls. Such disclosure shall be given:
(a) On the face of any written materials; or
(b) Prior to requesting or inviting the person to enter into the sale or lease in any oral notification.
IV. The provisions of this section shall not apply where to be eligible:
(a) Participants are 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 their entry by telephone. If, however, the participant may enter such contest by either dialing a 900 number or completing a written entry, such written entry requirements shall be as conspicuously noted as those requiring the use of the 900 number.
(b) Participants are never required to listen to a sales presentation and never requested or required to pay any sum of money for any merchandise, service or item of value.
V. Nothing in this section shall create any liability for acts by the publisher, owner, agent or employee of a newspaper, periodical, radio station, television station, telecommunications corporation, cable-television system or other advertising medium arising out of the publication or dissemination of any advertisement or promotion governed by this section, when the publisher, owner, agent or employee did not know that the advertisement or promotion violated the requirements of this section.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:5
358-O:5 Representation of Being Specially Selected. –
I. No person shall represent that another person has been specially selected in connection with the sale or lease or solicitation for sale or lease of goods, property or service, unless the selection process is designed to reach a particular type or types of persons.
II. The use of any language that may lead a reasonable person to believe he has been specially selected, including but not limited to, "carefully selected," or "You have been selected to receive," or "You have been chosen," shall be considered a representation of the type governed by this section.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:6
358-O:6 Simulation of Checks, Invoices, Official Documents, and Agencies. –
In connection with a consumer transaction, no person shall issue any writing which simulates or resembles:
I. A check unless the writing clearly and conspicuously discloses its true value and purpose, and the writing would not mislead a reasonable person.
II. An invoice unless the intended recipient of the invoice has actually contracted for goods, property, or services for which the issuer seeks proper payment.
III. Any document issued by an officer of any court of any jurisdiction or which implies the offerer is sending a court or legal document.
IV. Any words, phrases, or visual representation which simulate or cause confusion with the seal or name of a governmental agency or entity, whether it be real or fictitious, or which imply that the offeror is a governmental entity.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:7
358-O:7 Conditions for Handling Charges and Shipping Charges. –
I. It shall be unlawful to notify a person that such person will receive a gift, prize, or item of value and that as a condition of receiving the gift, prize or item of value such person will be required to pay any money, or purchase or lease (including rent) any goods or services, if any one or more of the following conditions exist:
(a) The shipping charges exceed:
(1) 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
(2) the exact amount for shipping 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
(b) The handling charge exceeds the lesser of $5 or the actual cost of handling.
II. This section shall apply to all offers of prizes, gifts or items of value covered by this chapter.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:8
358-O:8 Civil Action. –
Any consumer who suffers loss by reason of a violation of any provision of this chapter may bring a civil action to enforce such provisions. Any consumer who is successful in such an action shall recover reasonable attorney's fees and court costs incurred by bringing such action.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:9
358-O:9 Penalties. –
Any violation of this chapter shall constitute a prohibited practice under the provisions of RSA 358-A and shall be subject to any of the enforcement provisions of RSA 358-A.
Source. 1994, 229:2, eff. Jan. 1, 1995.
Section 358-O:10
358-O:10 Exemptions. –
The provisions of RSA 358-O:4 through 358-O:7 shall not apply to the sale or 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 which is regulated by the Federal Trade Commission trade regulation rule concerning 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 such goods and the recipient of such goods is given the opportunity, after examination of the goods, to receive a full refund of charges for the goods, or unused portion thereof, upon return of the goods, or unused portion thereof, undamaged.
Source. 1994, 229:2, eff. Jan. 1, 1995.