940 CMR, § 30.05 - Criteria for Determining Whether a Gambling Purpose Predominates

The determination under 940 C.M.R. 30.04(2) whether, with respect to a business or a transaction, a gambling purpose predominates over the bona fide sale of bona fide goods or services, shall consider the facts and circumstances of the business or transaction including, without limitation, the following criteria:

(a) The portion of goods or services sold that are actually used or redeemed by the customers of the business;

(b) The portion of customers that engage in lotteries, sweepstakes or similar games without accepting, using or redeeming the goods or services sold or purportedly sold;

(c) The manner in which the business or the transactions are marketed, advertised, or promoted, including without limitation:

1. signage at the establishment;

2. advertising and other methods of soliciting customers;

3. the business's interaction with customers at the establishment;

4. the overall atmosphere and environment at the establishment, including whether it appears or is designed to appear similar to a casino or other gambling establishment;

(d) Whether and the degree to which the establishment provides instructions to customers with respect to:

1. use or operation of the lottery, sweepstakes, other games or gaming devices, as compared to;

2. use or operation of goods or services sold or purportedly sold;

(e) The motivation or purpose of:

1. the customers of the business; and/or

2. the business in offering a transaction involving a lottery, sweepstakes, similar game or use of gaming devices;

(f) Whether customers are permitted to participate in the lottery, sweepstakes, similar game, use of gaming devices or similar gambling aspect of the business without purchasing the goods or services offered or purportedly offered by the business; and in the event that a free play option is available or purportedly available:

1. the terms and conditions to access, implement or use the free play;

2. whether the free play option permits customers to play in a manner and at a time substantially identical to those customers paying for or purportedly paying for goods or services;

3. the burden to access, implement or use a free play option;

(g) Whether customers who purchase or purportedly purchase goods or services in connection with a lottery, sweepstakes, similar game or use of gaming devices achieve any advantages, whether immediate or over a period of time, in winning a prize over customers who do not purchase or purportedly purchase goods or services.

(h) With respect to businesses that use or purport to use a lottery, sweepstakes, similar game or use of gaming devices to promote the sale of goods or services offered or purportedly offered by the business, whether such promotion is occasional and of limited duration as compared to permanent or of undefined or long-term duration.

Notes

940 CMR, § 30.05