Mailing Date: July 23, 2013

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


Scott A. Schleifstein, Esq.
Cohen Silverman Rowan LLP
360 Lexington Avenue, 16th Floor
New York, NY 10017
VIA E-MAIL:  scott@promolaw.com

 
           RE:    Smirnoff “Master Your Mix” Sweepstakes
 
Dear Mr. Schleifstein:
 
ISSUE:  This correspondence is in response to your e-mail and attached letter dated July 18, 2013, wherein you request approval, on behalf of Diageo Americas, Inc., to conduct the Smirnoff “Master Your Mix” Sweepstakes in Pennsylvania.
 
According to the “Official Rules” that you provided, the sweepstakes is scheduled to begin on July 29, 2013, and runs until August 31, 2013.  Interested individuals may enter the sweepstakes by sending a text message with the word “PERFECTMIX” from their handset to 839863 during the sweepstakes period.  Once an individual has sent the text message, verified his or her age, and provided his or her name and address, he or she will be automatically entered into the sweepstakes.  Alternatively, interested individuals may enter the sweepstakes by visiting http://www.smirnoffmixweeps.com/ during the sweepstakes period and following the on-screen instructions.  There is a limit of one (1) entry per person regardless of the method of entry.
 
Four (4) grand prizes will be awarded for the sweepstakes.  The grand prize winners will be determined in a random drawing to be conducted on or about September 3, 2013.  Each grand prize winner will receive an in-home party package, which will include the following:  one (1) two hundred fifty dollar ($250.00) Fine Wine & Good Spirits gift card redeemable at any of the Pennsylvania Liquor Control Board’s (“Board”) wine & spirits stores or its e-commerce store; one (1) one hundred dollar ($100.00) iTunes gift card; and one (1) barware kit.  Gift cards are subject to the terms/conditions of the issuer.  The approximate retail value of each grand prize is six hundred dollars ($600.00).
 
Thirty-one (31) first prizes will also be awarded for the sweepstakes.  The first prize winners will be determined in two (2) random drawings.  The first random drawing will occur on or about August 19, 2013 and will consist of all eligible entries received by August 15, 2013.  The second random drawing will occur on or about September 3, 2013 and will consist of all eligible entries received during the entire sweepstakes period.  Fifteen (15) first prizes will be awarded in the first random drawing, and sixteen (16) first prizes will be awarded in the second random drawing.
 
The sweepstakes is open only to legal residents of Pennsylvania who are twenty-one (21) years of age or older at the time of entry.  No purchase is necessary to enter or win the sweepstakes.
 
OPINION:  Section 5.32(h) of the Board’s 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 and determined that it comports with applicable liquor laws and regulations, specifically section 493(24)(i) of the Liquor Code [47 P.S. § 4-493(24)(i)] and section 5.32(h) of the Board’s Regulations [40 Pa. Code § 5.32(h)]. 
 
Notably, since the Fine Wine and Good Spirits gift cards being awarded as part of the grand prize may be redeemed for non-alcoholic beverage items sold by the Board and/or redeemed for cash, the proposed promotion would not violate the prohibition on awarding alcoholic beverages as part of the prize set forth above.
 
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 Selection 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, it is permissible to conduct the proposed sweepstakes promotion, as described above, in the Commonwealth in reference to the areas checked below:
 
      
retail licensed premises.
       
distributor licensed premises.
       
both retail and distributor licensed premises. 
 X      
the Board’s wine and spirits stores, subject to approval of the Bureau of Product Selection (POS only).
 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
        James Short, Director of Marketing
        Tim Fringer, Bureau of Product Selection
        Michelle Bonsick, Bureau of Marketing Communications, Branding & Design
 
LCB Advisory Opinion No. 13-343

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