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BILL NUMBER: AB 1676 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 20, 1998
AMENDED IN SENATE JUNE 30, 1998
AMENDED IN ASSEMBLY APRIL 28, 1998
AMENDED IN ASSEMBLY MARCH 26, 1998
AMENDED IN ASSEMBLY MARCH 12, 1998
INTRODUCED BY Assembly Member Bowen
(Coauthors: Assembly Members Brown, Campbell, Kuehl, Leach,
Martinez, and Mazzoni)
(Coauthors: Senators Dills, Karnette, O'Connell, Solis,
Vasconcellos, and Watson)
JANUARY 14, 1998
An act to amend Section 17538.4 of the Business and Professions
Code, relating to advertising.
LEGISLATIVE COUNSEL'S DIGEST
AB 1676, as amended, Bowen. Advertising: electronic mail.
Existing law prohibits a person conducting business in this state
from faxing unsolicited advertising material, unless certain
conditions are satisfied.
This bill would expand that prohibition to include the
transmission of unsolicited advertising by electronic mail (e-mail),
and would make several related changes.
This bill would become inoperative if federal law on this subject
is enacted.
Existing law provides for the regulation of advertising and
provides that a violation of those provisions is a crime. This bill,
by creating additional prohibitions with regard to advertising,
would expand the scope of an existing crime, thereby imposing a
state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 17538.4 of the Business and Professions Code is
amended to read:
17538.4. (a) No person or entity conducting business in this
state shall facsimile (fax) or cause to be faxed, or electronically
mail (e-mail) or cause to be e-mailed, documents consisting of
unsolicited advertising material for the lease, sale, rental, gift
offer, or other disposition of any realty, goods, services, or
extension of credit unless:
(1) In the case of a fax, that person or entity establishes a
toll-free telephone number that a recipient of the unsolicited faxed
documents may call to notify the sender not to fax the recipient any
further unsolicited documents.
(2) In the case of e-mail, that person or entity establishes a
toll-free telephone number or valid sender operated return e-mail
address that the recipient of the unsolicited documents may call or
e-mail to notify the sender not to e-mail any further unsolicited
documents.
(b) All unsolicited faxed or e-mailed documents subject to this
section shall include a statement informing the recipient of the
toll-free telephone number that the recipient may call, or a valid
return address to which the recipient may write or e-mail, as the
case may be, notifying the sender not to fax or e-mail the recipient
any further unsolicited documents to the fax number, or numbers, or
e-mail address, or addresses, specified by the recipient.
In the case of faxed material, the statement shall be in at least
nine-point type. In the case of e-mail, the statement shall be the
first text in the body of the message and shall be of the same size
as the majority of the text of the message.
(c) Upon notification by a recipient of his or her request not to
receive any further unsolicited faxed or e-mailed documents, no
person or entity conducting business in this state shall fax or cause
to be faxed or e-mail or cause to be e-mailed any unsolicited
documents to that recipient.
(d) In the case of e-mail, this section shall apply when the
unsolicited e-mailed documents are delivered to a California resident
via an electronic mail service provider's service or equipment
located in this state. For these purposes "electronic mail service
provider" means any business or organization qualified to do business
in this state that provides individuals, corporations, or other
entities the ability to send or receive electronic mail through
equipment located in this state and that is an intermediary in
sending or receiving electronic mail.
(e) As used in this section, "unsolicited e-mailed documents"
means any e-mailed document or documents consisting of advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit
that meet both of the following requirements:
(A)
(1) The documents are addressed to a recipient with whom the
initiator does not have an existing business or personal
relationship.
(B)
(2) The documents are not sent at the request of, or with
the express consent of, the recipient.
(f) As used in this section, "fax" or "cause to be faxed" or
"e-mail" or "cause to be e-mailed" does not include or refer to the
transmission of any documents by a telecommunications utility or
Internet service provider to the extent that the telecommunications
utility or Internet service provider merely carries that transmission
over its network.
(g) In the case of e-mail that consists of unsolicited advertising
material for the lease, sale, rental, gift offer, or other
disposition of any realty, goods, services, or extension of credit,
the subject line of each and every message shall include "ADV:" as
the first four characters. If these messages contain information
that consists of unsolicited advertising material for the lease,
sale, rental, gift offer, or other disposition of any realty, goods,
services, or extension of credit, that may only be viewed, purchased,
rented, leased, or held in possession by an individual 18 years of
age and older, the subject line of each and every message shall
include "ADV:ADLT" as the first eight characters.
(h) An employer who is the registered owner of more than one
e-mail address may notify the person or entity conducting business in
this state e-mailing or causing to be e-mailed, documents consisting
of unsolicited advertising material for the lease, sale, rental,
gift offer, or other disposition of any realty, goods, services, or
extension of credit of the desire to cease e-mailing on behalf of all
of the employees who may use employer-provided and
employer-controlled e-mail addresses.
(i) This section, or any part of this section, shall become
inoperative on and after the date that federal law is enacted that
prohibits or otherwise regulates the transmission of unsolicited
advertising by electronic mail (e-mail).
SEC. 2. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution because the
only costs that may be incurred by a local agency or school district
will be incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.
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