“Dial-A-Prize” Decision

Press, Volume CX, Issue 32352, 18 July 1970, Page 44

“Dial-A-Prize” Decision

(N.Z. Press Association) AUCKLAND, July 17. The Nestle Company (N.Z.), Ltd, was today convicted and fined $lOO by Mr M. L. Morgan, ■ S.M., in a reserved de- ‘ cision on the Nescafe : “DiabA-Prize” scheme. The company had denied a charge, under the Gaming Act, that on or about May 5 it started a scheme by which prizes were gained by mode of chance. The Magistrate said the game consisted of two stages: first the removal of a substance covering spots on a cart" to obtain three “win” spots; and second the making of six four-letter words from the word “Nescafe.” The prosecution contended that the first stage was a matter of pure chance, but conceded that there was some element of skill in the second stage. The defence, he said, had submitted that before the prosecution could succeed it

must be proved that those entering the scheme paid for the right to do so; that the scheme depended on chance alone, skill not entering into it; and that potential winning card before completion of the word-puzzle was a prize. Dealing with the first defence submission, the Magistrate said that some chances could be obtained in application by writing and it was not necessary to buy a jar of coffee to compete. Notwithstanding this, it appeared to him that an inducement was offered to all who purchased the defendant’s product bearing the appropriate label, thereby obtaining the means of participating. Once cards were obtained by purchasing the defendant’s products, it seemed that the element of payment had been established.

Of the defence contention that the removing of the substance covering the spots involved an element of skill, the Magistrate found that, while it involved a little care, dexterity was not involved.

Of the third defence submission, he said he considered it necessary—if the principle of severance was to be applied—to find that the obtaining of a card was a prize in itself. The Magistrate said: “The purchaser of a jar of coffee may find himself with a card entitling him to receive the top prize of $250 by a simple mechanical process of removing the covering from three winning spots. He discovers the amount of the prize by uncovering the centre spot. Certainly to qualify for the prize, it is necessary to solve the word-puzzle.” A British judge had described the word “puzzle” as “not by any means a trivial

matter, and not one all of us would get right immediately.” In the present case, the puzzle was one which could be solved quite easily. The possibility of not getting a prize did not exist at all. “The skill involved in solving the puzzle has nothing to do with the value of the prize, this being printed on the centre spot on each card,” the Magistrate said. “In solving the puzzle, the holder of the card does not compete with anyone. If he does not win the prize, nobody else is entitled to win it, except the holder of that card. In my view, therefore, the principle of severing of the two stages should be applied, with the result that the first stage is a scheme in itself which offends against the Gaming Act.”

For the defendant company, Mr N. J. Carter said that though the Magistrate had found the public had risked its money in the scheme, people had received full value in coffee. “It does not hurt the public but merely my client’s competitors, as would any other advertising scheme," he said. The Nestle company was a reputable one, and this was its first offence.

The Magistrate replied: “This was a planned scheme where unobjectionable features were grafted on to objectionable features—objectionable in that they offended under the Gaming Act.”