Nonmailable Written, Printed, and Graphic Matter

AGENCY:

Postal Service.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Domestic Mail Manual (DMM) to provide for changes to the standards concerning written, printed, and graphic matter as a result of the Deceptive Mail Prevention and Enforcement Act.

EFFECTIVE DATE:

May 4, 2000.

FOR FURTHER INFORMATION CONTACT:

Jerome M. Lease, (202) 268-5188.

SUPPLEMENTARY INFORMATION:

The Deceptive Mail Prevention and Enforcement Act, P.L. 106-168, 39 U.S.C., sub-section 3001, enacted on December 12, 1999, generally provides for the nonmailability of certain deceptive matter relating to sweepstakes, skill contests, and facsimile checks.

As a result, the Postal Service is amending Domestic Mail Manual (DMM) C030, Written, Printed, and Graphic Matter, to include changes to the general provisions concerning matter nonmailable by government misrepresentation and to provide new standards regarding sweepstakes, skill contests, and facsimile checks.

The changes announced in this notice are effective May 4, 2000, and will be announced in the Postal Bulletin and incorporated into future issues of the DMM. These amendments are being published without a notice and comment provision because they implement a change in statutory wording.

For the reasons discussed above, the Postal Service hereby adopts the following amendments to the Domestic Mail Manual, which is incorporated by reference in the Code of Federal Regulations (see 39 CFR part 111).

List of Subjects in 39 CFR Part 111

• Postal Service

PART 111—[AMENDED]

1. The authority citation for 39 CFR part 111 continues to read as follows:

Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 401, 403, 404, 3001-3011, 3201-3219, 3404-3406, 3621, 3626, 5001.

2. Revise part C030 of the Domestic Mail Manual to include the following revisions and additional sections 6.0, 7.0, 8.0, and 9.0 to read as follows:

C Characteristics and Content

C000 General Information

C030 Nonmailable Written, Printed, and Graphic Matter

C031 Written, Printed, and Graphic Matter Generally

2.0 SOLICITATIONS DECEPTIVELY IMPLYING FEDERAL CONNECTION, APPROVAL, OR ENDORSEMENT (39 USC 3001(H) AND 3001(I); 39 USC 3005)

2.2 Nonmailable by Government Misrepresentation

A solicitation that misrepresents a government entity is nonmailable subject to these conditions:

a. Matter that contains a solicitation for products, services, information, or funds which imply 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, or 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 is nonmailable unless it conforms to 2.3. A nonconforming solicitation constitutes prima facie evidence of violation of 39 USC 3005. Compliance with 2.3 does not avoid violation of 39 USC 3005 if the solicitation or accompanying information misrepresents material fact such as the nature, value, quantity, quality, or efficacy of the products or services offered for sale, or of the activities of an organization asking for information or monetary contributions.

b. Such solicitations must not contain a false representation that federal government benefits or services will be affected by whether or not the recipient makes a purchase or contribution.

c. Solicitations for payment for services otherwise available to the recipient free of charge from the federal government are nonmailable unless they contain a clear and conspicuous statement giving notice of that fact.

2.3 Permitted Solicitations

A solicitation described in 2.2(a) may be mailable if it meets at least one of these conditions (see Exhibit 2.3):

[No other changes to current a, b, and c.]

[Add new 6.0 to read as follows:]

6.0 SWEEPSTAKES MATTER (39 USC § 3001(k)(3)(A))

6.1 Definition

The term sweepstakes means a game of chance for which no consideration is required to enter.

6.2 Mailable Matter

Sweepstakes matter is mailable only if it discloses all of the following:

a. In the body, in the rules, and on the order or entry form that no purchase is necessary.

b. In the body, in the rules, and on the order or entry form that a purchase will not increase the odds of winning.

c. All terms and conditions, including rules and entry procedures of the sweepstakes.

d. The sponsor or mailer, with the principal place of business or address at which the sponsor or mailer may be contacted.

e. Sweepstakes rules, including the odds of winning, quantity, value, and nature of the prize and the schedule of any payments over time.

6.3 Nonmailable Matter

Sweepstakes matter is nonmailable if it does any of the following:

a. Represents that individuals not making a purchase may be disqualified from receiving future solicitations.

b. Requires that the entry be accompanied by an order or payment for a product or service previously ordered.

c. Represents that the recipient has won a prize unless that individual has won such prize.

d. Otherwise contradicts or is inconsistent with any disclosure required by 6.2 or 6.3.

7.0 SKILL CONTESTS (39 USC 3001(k)(3)(B))

7.1 Definition

The term skill contest means a puzzle, game, competition, or other contest in which a prize is awarded, the outcome depends upon the skill of the contestant, and for which a payment, purchase, or donation is required to enter.

7.2 Mailable Matter

Skill contests are mailable only if they include all of the following:

a. Disclose the terms and conditions of the contest, including the rules and entry procedures.

b. Disclose the sponsor or mailer, with the principal place of business or address at which the sponsor or mailer may be contacted.

c. Contain rules that state all of the following:

(1) Number of rounds or levels and the cost to enter each round.

(2) If subsequent rounds will be more difficult.

(3) Maximum cost to enter all rounds.

(4) Number of entrants or percentage expected to correctly solve the contest.

(5) Identity or qualifications of the judges, if judged by other than the sponsor.

(6) Method of judging.

(7) Dates the winners will be determined and the prizes awarded.

(8) Quantity, value, and nature of the prize.

(9) Schedule of any payments over time.

8.0 FACSIMILE CHECKS (39 USC § 3001(k)(3)(C))

A facsimile check is nonmailable unless it states on the face of the check that it is not a negotiable instrument and has no cash value.

9.0 EXCLUSIONS AND DISCLOSURES (39 USC §§ 3001(k)(4) & 3001(k)(5))

9.1 Mailable Matter

Matter described in 6.0, 7.0, and 8.0 is mailable if it appears in a magazine, newspaper, or other periodical if the promotions are not directed to a named individual, or the promotions do not include the opportunity to make a payment or order a product or service.

9.2 Notices and Disclaimers

Any notice or disclaimer required under 6.0, 7.0, or 8.0 shall be clearly and conspicuously displayed. Disclaimers required by 6.2a and 6.2b must be more conspicuously displayed than any other disclaimer.

10.0 REMOVAL OF NAMES FROM MAILING LISTS (39 USC § 3001(l))

10.1 Lists

In general, any person who uses the mails for any mailing falling under 2.0, 6.0, 7.0, or 8.0 shall adopt reasonable practices or procedures to prevent the mailing of such matter to any person who, personally or through their legal representative, submits a written request that no such matter shall be mailed to that person. Such request may be made either to the mailer, or the Attorney General, or their representative, of the appropriate state. Such requests shall be honored for a period of five years from the date of the request. The mailer shall maintain a record of all such written requests.

10.2 Special Requirements for Sweepstakes and Skill Contests (Effective December 12, 2000.)

Any promoter of sweepstakes or skill contests must make a clear and conspicuous disclosure of the address or toll-free telephone number by which an individual, or their duly authorized representative, may notify a promoter to have that individual's name and address removed from all lists of names and addresses used by that promoter to mail any skill contest or sweepstakes. Promoters have 60 days from the date of receipt of the removal request to effect the removal of the name and address from all mailing lists used by that promoter for any skill contest or sweepstakes.