dissenting. I am constrained to dissent. The constitutional prohibition against lotteries, Section 6, Article XY of the Constitution of Ohio, has been implemented by the General Assembly in the enactment of R. C. Chapter 2915. In my view, Regulation 53, Section II of the Liquor Control Commission, had its ori*176gin in R. C. Chapter 2915, and, as such, is penal in nature, which demands a strict construction delimited by the purpose for its existence. After touching base with this guideline of criminal statutory construction, I agree, as does the majority, that the essential proof requirements of gambling, wagering, or lottery participation are price, chance and prize, with only price being in controversy in the instant case.
Any construction given the penal regulation of the Liquor Control Commission which is broader than the criminal statute would be uneven and intolerable.
I am unable to find, either from the stipulation of facts in this case or from inferences based on such facts, that any price is being paid by anyone. The only facts in evidence remotely concerning a relationship between the games and appellant’s patrons are contained in the stipulations, as follows:
“(b) The majority of the Race to Riches cards are distributed * * * to persons who make purchases and pass through the checkout lines at plaintiff’s various Kroger supermarkets * * #.
“Pepsi-Cola Give-Away Program
“8. The Pepsi-Cola Bottling Company * * * supplies Kroger * * * with Pepsi-Cola.
“9. Pepsi-Cola imprints playing card symbols under the cap liner of its bottle caps. * * * The majority of such card caps are distributed upon bottles of Pepsi-Cola and Diet Cola offered for sale by and through various retailers including plaintiff.”
Those who have a relationship with the games and the materials used for them must be:
(1) Patrons who make purchases, receive the game materials, and then engage in playing the games.
(2) Patrons who make purchases, receive the game materials, and do not use them.
(3) Patrons who make purchases and refuse the materials.
(4) Persons who do not make purchases but obtain the materials and play the games.
*177As I understand the limits of the stipulation of facts, it denotes that there are more materials distributed to those in categories (1) and (2), than are distributed to those in category (4). There are simply no facts which indicate that those who have made purchases and play the games have paid any different price for appellant’s products than those who receive the materials and do not use them, or purchasers who refuse to accept the materials. It must also be kept in mind that the materials are available without charge. Only a strained interpretation of the criminal law can serve to make one who buys products and receives game materials subject to criminal sanction, while one who gets them free is not subject to the sanction.
Finding consideration, as the Georgia court did in Boyd v. Piggly Wiggly Southern (1967), 115 Ga. App. 628, 155 S. E. 2d 630, amounts to clutching a flimsy straw for consideration completely out of keeping with our avowed adherence to the doctrine of strict construction of criminal statutes.
More palatable, but not convincing, are those cases which rest on the theory that the requirement of consideration does not necessarily need be a price paid by a player, but is satisfied by a benefit conferred on the promoter according to contract principles.
Returning to the facts for the moment, I find no evidence that the appellants have benefited from the game, unless their presence in this court gives rise to the inference that protection for a benefit is sought. Again, we have no evidentiary facts of the financial posture of these appellants directly related to the conducting of the games which indicate that prices were increased to finance the games.
As I see it, a reasonable interpretation of these gambling, wagering and lottery prohibitions is the intendment that certain something-for-nothing traits of many persons are not to be exploited to their detriment by others causing them personal losses of money or something of value. How can there be a violation when there has been no demonstrable loss to the participant?
*178The United States Supreme Court, in Federal Communications Comm. v. American Broadcasting Co. (1954), 347 U. S. 284, rejected the commission’s contention that a radio or television give-away game with a promotional motive was supported by a consideration where the promoter receives a commercial benefit when the other elements of a lottery are present. In that case, a contestant did not have to visit the promoter’s premises. The only discernible difference between that case and the instant case is that in the instant case a visit to the promoter’s premises is necessary. However, such a visit to the promoter’s premises does not supply the missing consideration, because that visit is of benefit to the promoter similar to the benefit which the broadcasting promoter receives, the difference being a matter of degree rather than kind. In neither case is money or a thing of value extracted from a player.
For analogous case decisions, see Wrigley Stores v. Wayne (1960), 359 Mich. 215, 102 N. W. 2d 545; California Gasoline Retailers v. Regal Petroleum Corp. (1958), 50 Cal. 2d 844, 330 P. 2d 778; Goodwill Advertising v. State Liquor Authority (1962), 40 Misc. 2d 886, 244 N. Y. Supp. 322; Caples Co. v. United States (C. A. D. C. 1957), 243 F. 2d 232; People v. Eagle Food Centers (1964), 31 Ill. 2d 535, 202 N. E. 2d 473; People v. Burns (1952), 304 N. Y. 380, 107 N. E. 2d 498; Clark v. State (1955), 262 Ala. 462, 80 So. 2d 312; and Cudd v. Aschenbrenner (1962), 233 Ore. 272, 377 P. 2d 150.
In appreciation of the criminal parallel attendant to our inquiry herein, I have no comment on whether the games people play have redeeming social value; I would reserve for the General Assembly the decision as to the fate of promotional games of this nature. Therefore, I would hold that the games are not prohibited by the Ohio Constitution, the statutes, or the Regulations of the Liquor Control Commission.
Schneider, J., concurs in the foregoing dissenting opinion.