Home > 106th Congressional Bills > H.R. 170 (rh) To require certain notices in any mailing using a game of chance for the promotion of a product or service, and for other purposes. [Reported in House] ...

H.R. 170 (rh) To require certain notices in any mailing using a game of chance for the promotion of a product or service, and for other purposes. [Reported in House] ...


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                                                       Calendar No. 418
106th CONGRESS
  1st Session
                                H. R. 170


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 3, 1999

                                Received

                           November 19, 1999

                 Read twice and placed on the calendar

_______________________________________________________________________

                                 AN ACT


 
 To require certain notices in any mailing using a game of chance for 
     the promotion of a product or service, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Deceptive Mail Prevention and 
Enforcement Act''.

SEC. 2. RESTRICTIONS ON MAILINGS USING MISLEADING REFERENCES TO THE 
              UNITED STATES GOVERNMENT.

    Section 3001 of title 39, United States Code, is amended--
            (1) in subsection (h)--
                    (A) in the first sentence by striking ``contains a 
                seal, insignia, trade or brand name, or any other term 
                or symbol that reasonably could be interpreted or 
                construed as implying any Federal Government 
                connection, approval or endorsement'' and inserting the 
                following: ``which reasonably could be interpreted or 
                construed as implying any Federal Government 
                connection, approval, or endorsement through the use of 
                a seal, insignia, reference to the Postmaster General, 
                citation to a Federal statute, name of a Federal 
                agency, department, commission, or program, trade or 
                brand name, or any other term or symbol; or contains 
                any reference to the Postmaster General or a citation 
                to a Federal statute that misrepresents either the 
                identity of the mailer or the protection or status 
                afforded such matter by the Federal Government''; and
                    (B) in paragraph (2)--
                            (i) in subparagraph (A) by striking ``and'' 
                        at the end;
                            (ii) in subparagraph (B) by striking ``or'' 
                        at the end and inserting ``and''; and
                            (iii) by inserting after subparagraph (B) 
                        the following:
                    ``(C) such matter does not contain a false 
                representation stating or implying that Federal 
                Government benefits or services will be affected by any 
                purchase or nonpurchase; or'';
            (2) in subsection (i) in the first sentence--
                    (A) in the first sentence by striking ``contains a 
                seal, insignia, trade or brand name, or any other term 
                or symbol that reasonably could be interpreted or 
                construed as implying any Federal Government 
                connection, approval or endorsement'' and inserting the 
                following: ``which reasonably could be interpreted or 
                construed as implying any Federal Government 
                connection, approval, or endorsement through the use of 
                a seal, insignia, reference to the Postmaster General, 
                citation to a Federal statute, name of a Federal 
                agency, department, commission, or program, trade or 
                brand name, or any other term or symbol; or contains 
                any reference to the Postmaster General or a citation 
                to a Federal statute that misrepresents either the 
                identity of the mailer or the protection or status 
                afforded such matter by the Federal Government''; and
                    (B) in paragraph (2)--
                            (i) in subparagraph (A) by striking ``and'' 
                        at the end;
                            (ii) in subparagraph (B) by striking ``or'' 
                        at the end and inserting ``and''; and
                            (iii) by inserting after subparagraph (B) 
                        the following:
                    ``(C) such matter does not contain a false 
                representation stating or implying that Federal 
                Government benefits or services will be affected by any 
                contribution or noncontribution; or'';
            (3) by redesignating subsections (j) and (k) as subsections 
        (m) and (n), respectively; and
            (4) by inserting after subsection (i) the following:
    ``(j)(1) Any matter otherwise legally acceptable in the mails which 
is described in paragraph (2) is nonmailable matter, shall not be 
carried or delivered by mail, and shall be disposed of as the Postal 
Service directs.
    ``(2) Matter described in this paragraph is any matter that--
            ``(A) constitutes a solicitation for the purchase of or 
        payment for any product or service that--
                    ``(i) is provided by the Federal Government; and
                    ``(ii) may be obtained without cost from the 
                Federal Government; and
            ``(B) does not contain a clear and conspicuous statement 
        giving notice of the information set forth in clauses (i) and 
        (ii) of subparagraph (A).''.

SEC. 3. RESTRICTIONS ON SWEEPSTAKES AND DECEPTIVE MAILINGS.

    Section 3001 of title 39, United States Code, is amended by 
inserting after subsection (j) (as added by section 2(4) of this Act) 
the following:
    ``(k)(1) In this subsection--
            ``(A) the term `clearly and conspicuously displayed' means 
        presented in a manner that is readily noticeable, readable, and 
        understandable to the group to whom the applicable matter is 
        disseminated;
            ``(B) the term `facsimile check' means any matter that--
                    ``(i) is designed to resemble a check or other 
                negotiable instrument; but
                    ``(ii) is not negotiable;
            ``(C) the term `skill contest' means a puzzle, game, 
        competition, or other contest in which--
                    ``(i) a prize is awarded or offered;
                    ``(ii) the outcome depends predominately on the 
                skill of the contestant; and
                    ``(iii) a purchase, payment, or donation is 
                required or implied to be required to enter the 
                contest; and
            ``(D) the term `sweepstakes' means a game of chance for 
        which no consideration is required to enter.
    ``(2) Except as provided in paragraph (4), any matter otherwise 
legally acceptable in the mails which is described in paragraph (3) is 
nonmailable matter, shall not be carried or delivered by mail, and 
shall be disposed of as the Postal Service directs.
    ``(3) Matter described in this paragraph is any matter that--
            ``(A)(i) includes entry materials for a sweepstakes or a 
        promotion that purports to be a sweepstakes; and
            ``(ii)(I) does not contain a statement that discloses in 
        the mailing, in the rules, and on the order or entry form, that 
        no purchase is necessary to enter such sweepstakes;
            ``(II) does not contain a statement that discloses in the 
        mailing, in the rules, and on the order or entry form, that a 
        purchase will not improve an individual's chances of winning 
        with such entry;
            ``(III) does not state all terms and conditions of the 
        sweepstakes promotion, including the rules and entry procedures 
        for the sweepstakes;
            ``(IV) does not disclose the sponsor or mailer of such 
        matter and the principal place of business or an address at 
        which the sponsor or mailer may be contacted;
            ``(V) does not contain sweepstakes rules that state--
                    ``(aa) the estimated odds of winning each prize;
                    ``(bb) the quantity, estimated retail value, and 
                nature of each prize; and
                    ``(cc) the schedule of any payments made over time;
            ``(VI) represents that individuals not purchasing products 
        or services may be disqualified from receiving future 
        sweepstakes mailings;
            ``(VII) requires that a sweepstakes entry be accompanied by 
        an order or payment for a product or service previously 
        ordered;
            ``(VIII) represents that an individual is a winner of a 
        prize unless that individual has won such prize; or
            ``(IX) contains a representation that contradicts, or is 
        inconsistent with sweepstakes rules or any other disclosure 
        required to be made under this subsection, including any 
        statement qualifying, limiting, or explaining the rules or 
        disclosures in a manner inconsistent with such rules or 
        disclosures;
            ``(B)(i) includes entry materials for a skill contest or a 
        promotion that purports to be a skill contest; and
            ``(ii)(I) does not state all terms and conditions of the 
        skill contest, including the rules and entry procedures for the 
        skill contest;
            ``(II) does not disclose the sponsor or mailer of the skill 
        contest and the principal place of business or an address at 
        which the sponsor or mailer may be contacted; or
            ``(III) does not contain skill contest rules that state, as 
        applicable--
                    ``(aa) the number of rounds or levels of the 
                contest and the cost to enter each round or level;
                    ``(bb) that subsequent rounds or levels will be 
                more difficult to solve;
                    ``(cc) the maximum cost to enter all rounds or 
                levels;
                    ``(dd) the estimated number or percentage of 
                entrants who may correctly solve the skill contest or 
                the approximate number or percentage of entrants 
                correctly solving the past 3 skill contests conducted 
                by the sponsor;
                    ``(ee) the identity or description of the 
                qualifications of the judges if the contest is judged 
                by other than the sponsor;
                    ``(ff) the method used in judging;
                    ``(gg) the date by which the winner or winners will 
                be determined and the date or process by which prizes 
                will be awarded;
                    ``(hh) the quantity, estimated retail value, and 
                nature of each prize; and
                    ``(ii) the schedule of any payments made over time; 
                or
            ``(C) includes any facsimile check that does not contain a 
        statement on the check itself that such check is not a 
        negotiable instrument and has no cash value.
    ``(4) Matter that appears in a magazine, newspaper, or other 
periodical shall be exempt from paragraph (2) if such matter--
            ``(A) is not directed to a named individual; or
            ``(B) does not include an opportunity to make a payment or 
        order a product or service.
    ``(5) Any statement, notice, or disclaimer required under paragraph 
(3) shall be clearly and conspicuously displayed. Any statement, 
notice, or disclaimer required under subclause (I) or (II) of paragraph 
(3)(A)(ii) shall be displayed more conspicuously than would otherwise 
be required under the preceding sentence.
    ``(6) In the enforcement of paragraph (3), the Postal Service shall 
consider all of the materials included in the mailing and the material 
and language on and visible through the envelope or outside cover or 
wrapper in which those materials are mailed.
    ``(l)(1) Any person who uses the mails for any matter to which 
subsection (h), (i), (j), or (k) applies shall adopt reasonable 
practices and procedures to prevent the mailing of such matter to any 
person who, personally or through a conservator, guardian, or 
individual with power of attorney--
            ``(A) submits to the mailer of such matter a written 
        request that such matter should not be mailed to such person; 
        or
            ``(B)(i) submits such a written request to the attorney 
        general of the appropriate State (or any State government 
        officer who transmits the request to that attorney general); 
        and
            ``(ii) that attorney general transmits such request to the 
        mailer.
    ``(2) Any person who mails matter to which subsection (h), (i), 
(j), or (k) applies shall maintain or cause to be maintained a record 
of all requests made under paragraph (1). The records shall be 
maintained in a form to permit the suppression of an applicable name at 
the applicable address for a 5-year period beginning on the date the 
written request under paragraph (1) is submitted to the mailer.''.

SEC. 4. POSTAL SERVICE ORDERS TO PROHIBIT DECEPTIVE MAILINGS.

    Section 3005(a) of title 39, United States Code, is amended--
            (1) by striking ``or'' after ``(h),'' each place it 
        appears; and
            (2) by inserting ``, (j), or (k)'' after ``(i)'' each place 
        it appears.

SEC. 5. TEMPORARY RESTRAINING ORDER FOR DECEPTIVE MAILINGS.

    (a) In General.--Section 3007 of title 39, United States Code, is 
amended--
            (1) by redesignating subsection (b) as subsection (c); and
            (2) by striking subsection (a) and inserting the following:
    ``(a)(1) In preparation for or during the pendency of proceedings 
under section 3005, the Postal Service may, under the provisions of 
section 409(d), apply to the district court in any district in which 
mail is sent or received as part of the alleged scheme, device, 
lottery, gift enterprise, sweepstakes, skill contest, or facsimile 
check or in any district in which the defendant is found, for a 
temporary restraining order and preliminary injunction under the 
procedural requirements of rule 65 of the Federal Rules of Civil 
Procedure.
    ``(2)(A) Upon a proper showing, the court shall enter an order 
which shall--
            ``(i) remain in effect during the pendency of the statutory 
        proceedings, any judicial review of such proceedings, or any 
        action to enforce orders issued under the proceedings; and
            ``(ii) direct the detention by the postmaster, in any and 
        all districts, of the defendant's incoming mail and outgoing 
        mail, which is the subject of the proceedings under section 
        3005.
    ``(B) A proper showing under this paragraph shall require proof of 
a likelihood of success on the merits of the proceedings under section 
3005.
    ``(3) Mail detained under paragraph (2) shall--
            ``(A) be made available at the post office of mailing or 
        delivery for examination by the defendant in the presence of a 
        postal employee; and
            ``(B) be delivered as addressed if such mail is not clearly 
        shown to be the subject of proceedings under section 3005.
    ``(4) No finding of the defendant's intent to make a false 
representation or to conduct a lottery is required to support the 
issuance of an order under this section.
    ``(b) If any order is issued under subsection (a) and the 
proceedings under section 3005 are concluded with the issuance of an 
order under that section, any judicial review of the matter shall be in 
the district in which the order under subsection (a) was issued.''.

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