16 TAC §45.106
The Alcoholic Beverage Commission adopts amendments to §45.106,
governing the use of sweepstakes and games of chance as promotional devices
by members of the manufacturing tier of the alcoholic beverage industry, with
changes to the text as originally published in the December 16, 2005, edition
of the
Texas Register
(30 TexReg 8377).
These amendments are adopted primarily to conform the rule to recent amendments
to §102.07 and §108.061 of the Alcoholic Beverage Code. Those statutory
amendments removed the requirement that sweepstakes promotions be simultaneously
offered in 30 or more states. The rule was amended to conform to this broader
statutory standard. Other non-substantive amendments were made to the rule
to shorten and simplify its terms. The terms of paragraphs (g) and (i) were
amended so as to allow various sweepstakes entry mechanisms to be included
in or printed on product packaging, subject to conditions stated in the rule.
Mr. Jim Haire announced opposition to the rule and urged the commission
to continue the previous restriction in the rule on the view that such broadened
promotional activities by industry members results in more intemperate behavior
in society. The commission disagreed with this suggestion because industry
members have an affirmative right to engage in sweepstakes promotions under §102.07
and §108.061 of the Alcoholic Beverage Code. This rule, prior to amendment,
carried restrictions that conflicted with these statutory rights. Therefore,
the commission lacks the authority to follow Mr. Haire's recommendation to
continue the previous restrictions of this rule.
There were no other comments announcing support or opposition for this
rule, although the commission received three comments suggesting changes to
the proposed amendments.
The first suggestion for change was from commission staff who pointed out
that the proposed amendment to paragraph (d) of the rule indicated that the
holder of a Promotional permit can act on behalf of a wholesaler. Promotional
permittees may not act for wholesalers under the terms of §54.01 of the
Alcoholic Beverage Code. Accordingly, the staff recommended that the reference
to wholesalers in this paragraph be omitted. The commission agreed with this
suggestion and adopted the rule with the recommended change.
Anheuser-Busch suggested that the phrase "[u]nless conducted as an appropriate
trade-spending activity at the initial stages of multi-city, market, or state
sweepstakes" be added to the beginning of paragraph (e) of the rule. This
proposal references a different kind of promotional activity authorized under
rule 45.113(b)(3). The commission disagreed with this suggestion on the view
that, while there has not been difficulty in distinguishing between the regulatory
standards pertaining to the two different types of promotion, the proposed
amendment presented some risk of blurring the line between the two.
Finally, the Gambrinus Company suggested that the rule should be amended
so as to allow sweepstakes sponsors to offer alternative, non-purchase means
of entry by printing the website addresses on product packaging. The commission
agreed with this comment and modified the terms of paragraph (i)(2) to allow
this activity. However, the commissioners disagreed with the Gambrinus Company's
suggestion that the amended text specifically mention internet websites as
an alternate means of entry. The commission concluded that the practices offered
by the commenter are clearly lawful under the terms of the rule as adopted.
This rule is adopted under the authority of §5.31 of the
Alcoholic Beverage Code, which gives the commission authority to prescribe
and publish rules necessary to carry out the provisions of the Alcoholic Beverage
Code.
Cross Reference to Statute: Section 102.07 and §108.061 of the Alcoholic
Beverage Code are affected by the amendments.
§45.106.Sweepstakes and Games of Chance.
(a)
This rule relates to §102.07 and §108.061 of
the Alcoholic Beverage Code.
(b)
For purposes of the above referenced provisions of the
Alcoholic Beverage Code, sweepstakes shall include prizes that are awarded
to consumers on the basis of random chance or on the basis of some knowledge
or skill demonstrated by the sweepstakes participant, as determined by a judge
or judges selected by the sponsor for that purpose.
(c)
Members of the manufacturer and wholesaler tier (except
holders of a distributor's license) may offer a prize to a consumer if the
offer is part of a promotional sweepstakes activity.
(d)
A promotional permit holder contracted by the holder of
a manufacturer's permit may sponsor a sweepstakes on behalf of the manufacturer.
(e)
A person affiliated with the alcoholic beverage industry
may not receive a prize from a sweepstakes promotion.
(f)
Alcohol may not be awarded as a prize.
(g)
A person must be 21 years of age or older to enter a sweepstakes
promotion.
(h)
An upper tier sponsored sweepstakes entry or contest may
not be retailer specific and prizes may not be awarded on a retailer's premise.
(i)
Entry codes or entry forms on or in the caps, corks, labels,
case cartons, or other materials packaged with, within, or printed on any
packages of alcoholic beverages may be used as an entry mechanism provided:
(1)
such mechanisms do not grant a consumer's right to claim
winnings; and
(2)
there is at the point of sale or on product packaging conspicuously
displayed alternate means of entry available to the consumers.
(j)
All sweepstakes entries are prohibited from requiring a
purchase of an alcoholic beverage or the validation of any kind which requires
a purchase of any alcoholic beverages.
(k)
Except as specifically authorized by this section, and
the Alcoholic Beverage Code, §102.07 and §108.061, it shall be unlawful
for any person to sell or distribute any alcoholic beverage in a container
bearing any label, crown, or covering upon which there is printed or marked
any word, letter, figure, symbol or character representative of or suggesting
any game of chance, or to use or display any advertising so printed or marked.
(l)
Any sweepstakes promotion that includes prizes that are
to be awarded on the basis of some knowledge or skill demonstrated by the
sweepstakes participant may not be held or conducted on the licensed premises
of a retailer or private club. Sweepstakes sponsors may, with the retailer's
permission, place sweepstakes entry forms on retail premises.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 3, 2006.
TRD-200600587
Alan Steen
Administrator
Texas Alcoholic Beverage Commission
Effective date: February 23, 2006
Proposal publication date: December 16, 2005
For further information, please call: (512) 206-3204