Mailing Date: July 10, 2013

Telephone:
717-783-9454
FAX:
717-787-8820


Scott A. Schleifstein
Cohen Silverman Rowan LLP
360 Lexington Avenue, 18th Floor
New York, NY  10017
VIA E-MAIL:  scott@promolaw.com

 
RE:    Diageo Americas, Inc.
           “Smirnoff Ice Best New Year’s Eve Ever! Sweepstakes”
 
Dear Mr. Schleifstein:
 
ISSUE:  This correspondence is in response to your e-mail and attached letter dated July 2, 2013, in which you seek approval, on behalf of Diageo Americas, Inc., to conduct the “Smirnoff Ice Best New Year’s Eve Ever! Sweepstakes” in Pennsylvania.
 
According to the “Official Rules” that you provided, the sweepstakes is scheduled to begin on October 8, 2013, and runs until December 9, 2013.  Interested individuals may enter the sweepstakes by sending a text message with the word “SMIRNOFFICE” to 839863 during the sweepstakes period.  Alternatively, interested individuals may enter the sweepstakes by printing their name, address, date of birth, and telephone number, along with the words “Smirnoff Ice Best New Year’s Eve Ever! Sweepstakes – DIA18719” on a three (3)-inch by five (5)-inch card and mailing to the address specified in the “Official Rules.”  There is a limit of one (1) entry per person, regardless of the method of entry.
 
Six (6) grand prizes will be awarded for the sweepstakes.  The grand prize winners will be determined via random drawing to be conducted on or about December 13, 2013, by an independent third party organization.  Each grand prize winner will receive a VIP New Year’s Eve experience for him/her and up to five (5) guests (all of whom must be twenty-one (21) years of age or older) in one (1) of six locations (Chicago, IL; Los Angeles, CA; Las Vegas, NV; Miami, FL; New York City, NY; or Austin, TX) from Monday, December 30, 2013 to Wednesday, January 1, 2014.  The grand prize package includes the following:  round-trip coach air transportation for the winner and up to five (5) guests; accommodations for the winner and guests (suite style room) for the nights of December 30 and December 31, 2013 at a hotel of the sponsor’s choosing; and a catered party for the winner and his/her guests at the hotel on the evening of December 31, 2013.  Alcoholic beverages are not part of the prize.  The approximate retail value of each grand prize is twenty-two thousand dollars ($22,000.00).  There is a limit of one (1) prize per family/household/address.
 
The sweepstakes is open only to legal residents of the United States who are twenty-one (21) years of age or older at the time of entry.  No purchase is necessary to participate in or win the sweepstakes.
 
OPINION:  Section 5.32(h) of the Pennsylvania Liquor Control Board’s (“Board”) Regulations states that a manufacturer or licensee may sponsor sweepstakes promotions subject to the following conditions:
 
i.               No purchase is necessary to enter.
ii.             Entrants shall be twenty-one (21) years of age or older.
iii.           Retail licensed premises may only be involved as pick-up or drop-off points for entry forms and not for the conducting of drawings or the awarding of prizes.
iv.           Alcoholic beverages may not be part of the prize.
 
[40 Pa. Code § 5.32(h)].
 
This office has reviewed the proposed sweepstakes promotion and has determined that it comports with applicable liquor laws and regulations, specifically subsection 493(24) of the Liquor Code [47 P.S. § 4-493(24)] and section 5.32(h) of the Board’s Regulations [40 Pa. Code § 5.32(h)], and is acceptable for use in this Commonwealth, as long as alcoholic beverages are not awarded as any part of the grand prize.  Although the “Official Rules” indicate that the grand prize being awarded will not include alcoholic beverages, it remains unclear whether any part of the experience being awarded as the grand prize, including the catered party, will involve taste testing, sampling, or the provision of alcohol at no additional cost to the grand prize winners and/or their guests.  If it does, this would be considered as awarding alcohol as part of the prize and is not permitted.
 
Further, please be advised that prior approval of malt or brewed beverages point-of-sale (“POS”) material and retail licensed premises POS material is no longer required.  However, the requirement for prior approval of POS material intended for use in the Board’s wine and spirits stores from the Bureau of Product Management remains.  The total cost of all POS advertising material relating to any one (1) brand of any one (1) manufacturer at any one (1) time may not exceed three hundred dollars ($300.00) on a retail licensed premises.  [47 P.S. § 4-493(20) (i)].
 
Therefore, as long as alcoholic beverages are not awarded as any part of the grand prize, it is permissible to conduct this promotion in the Commonwealth in reference to the areas checked below:
 
         
retail licensed premises.
         
distributor licensed premises. 
   X   
both retail and distributor licensed premises (POS only). 
        
the Board’s wine and spirits stores, subject to approval of the Bureau of Product Management. 
   X   
other – Internet, text messaging.
 
THIS OPINION APPLIES ONLY TO THE FACTUAL SITUATION DESCRIBED HEREIN AND DOES NOT INSULATE THE LICENSEE OR OTHERS FROM CONSEQUENCES OF CONDUCT OCCURRING PRIOR TO ITS ISSUANCE.  THE PROPRIETY OF THE PROPOSED CONDUCT HAS BEEN ADDRESSED ONLY UNDER THE LIQUOR CODE AND REGULATIONS.  THE LAWS AND POLICIES ON WHICH THIS OPINION IS BASED ARE SUBJECT TO CHANGE BY THE LEGISLATURE OR THE PENNSYLVANIA LIQUOR CONTROL BOARD.
 
Very truly yours,
 
 
 
FAITH S. DIEHL
CHIEF COUNSEL
 
cc:   Pennsylvania State Police, Bureau of Liquor Control Enforcement
 
LCB Advisory Opinion No. 13-317

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