The Great Atlantic & Pacific Tea Company and Kitchen Magic, Inc. have agreed to pay $100,000 to settle charges by New York Attorney General Eliot Spitzer that a recent sweepstakes improperly gave Kitchen Magic permission to place telemarketing calls to entrants, even when the entrant’s phone number was registered with a state or federal Do Not Call list.
As announced by Spitzer’s office on May 3, 2005, the supermarket chain recently conducted the “Kitchen Magic Sweepstakes at A&P.” The sweepstakes gave entrants the chance to win a free Kitchen Magic “makeover” valued at $15,000. The entry form required the consumer to provide name, address, and phone number, and included language giving Kitchen Magic permission to call the entrant regarding its products and services. The official rules for the sweepstakes, which were not printed on the entry form and, according to Spitzer, were likely never seen by the consumer, stated that entrants gave Kitchen Magic permission to call them, even if their phone number was registered with a state or federal Do Not Call list.
Spitzer contended that the promotion improperly tried to get around the Do Not Call rules by causing sweepstakes entrants to waive their rights not to receive telemarketing calls. New York State’s registry, which has been around since 2001 and contains 2.4 million telephone numbers, had been merged with the National Do Not Call registry that went into effect October 1, 2003. Currently, the national list includes about 81 million numbers.
In settling the case, A&P and Kitchen Magic agreed not to use:
- A sweepstakes or contest entry form that purports to authorize the companies to place telephone calls to entrants’ households;
- Telephone numbers obtained in the course of conducting a sweepstakes, other than to notify the winner(s) of a prize;
- Sweepstakes rules, regulations, or entry forms that authorize calls to entrants whose telephone numbers are included in any Do Not Call registry.
Significance: The Federal Trade Commission’s Telemarketing Sales Rule allows a company to call a consumer who has given the company express written permission to call, even if the consumer’s number is on the registry. However, Spitzer apparently has determined that attempting to extend a blanket waiver of Do Not Call protection in the context of a sweepstakes does not qualify under the express written permission exception.