Promotion To Stop Requiring Waiver Of "do Not Call" Protection

Attorney General Spitzer today announced that his office has reached a settlement with The Great Atlantic & Pacific Tea Company ("A&P") and Kitchen Magic, Inc. that will stop the companies from placing telephone calls to sweepstakes entrants whose phone numbers are registered with a "DO NOT CALL" registry.

A&P conducted a recent sweepstakes entitled the "Kitchen Magic Sweepstakes at A&P". As part of the sweepstakes, consumers at participating A&P locations throughout the state were provided a chance to win a free Kitchen Magic "make-over" valued at $15,000. The sweepstakes entry form required the consumer to provide name, address and phone number, and language on the form gave Kitchen Magic permission to call the entrant regarding its products and services. In addition, the official rules for the sweepstakes, which were not printed on the entry form and were likely never seen by the consumer, stated that by completing the entry form, the entrant gave Kitchen Magic permission to call the entrant’s phone number - - even if the phone number were registered with a state or federal Do Not Call list.

"This promotion concealed the fact that, by entering the sweepstakes, consumers were waiving their ‘do not call’ protection," Spitzer said. "Consumers should not be duped into waiving their right to privacy in order to enter a sweepstakes."

New York State’s "Do Not Call" registry went into effect on April 1, 200l. New York State’s registry, containing 2.4 million telephone numbers, was merged with the National Do Not Call registry which was established in January, 2003.

Consumers who have registered their telephone number in a "Do Not Call" registry have expressed their choice not to receive telemarketing calls. Pursuant to state and federal law, that choice must be honored unless the consumer gives his or her express written authorization to receive a call in spite of the registration.

In settling the case with the Attorney General, A&P and Kitchen Magic agreed not to use:

• A sweepstakes or contest entry form which 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 which authorize calls to entrants whose telephone numbers are included in any "Do Not Call" registry.

Spitzer’s investigation also revealed that the promotion violated certain provisions of a May 2004 settlement with A&P regarding the company’s sweepstakes practices.

Pursuant to the settlement, A & P and Kitchen Magic agreed to pay $100,000 in civil penalties and costs.

This case was handled by Assistant Attorney General Doris K. Morin under the supervision of Gary S. Brown, Assistant Attorney General in Charge of the Westchester Regional Office.