Play by the Rules: Top Legal Guidelines For Sweepstakes, Contests, & More

Marketing promotions such as sweepstakes, contests, and instant-win games can be powerful tools for attracting new leads, boosting sales and engagement, and much more – if executed correctly. However, these promotions also require careful navigation of legal intricacies to ensure adherence and mitigate risk.

Mishandling these promotions or accidentally infringing upon established laws can lead to severe legal repercussions for your business. As regulations evolve and new digital formats emerge, it’s more important than ever for marketers to stay on top of the legal guidelines for digital promotions to avoid any missteps. 

This blog delves into the key legal aspects of popular promotions like sweepstakes and contests, shedding light on important terms and variations in regulations at both federal and state levels to help marketers safeguard their brand's reputation and their future promotional campaigns.

Who Is In Charge Of Laws and Regulations for Promotions like Sweepstakes, Contests, and More? 

Generally, the Federal Trade Commission (FTC) is the primary federal agency responsible for regulating sales promotions and advertising under the Federal Trade Commission Act, 15 U.S.C. § 41. This means they're basically in charge of investigating suspected violations and bringing lawsuits against companies for illegal activity. However, the US Postal Service (USPS) and the Federal Communications Commission (FCC) also have authority for certain laws regarding promotions. 

In addition, most states have similar laws that closely resemble the FTC Act, and gambling, lottery, and promotion laws that govern the conduct of contests and sweepstakes. 

What Separates A Lottery From A Sweepstakes?

The best place to start building your promotional law knowledge base foundation is with the basics, and your first step is knowing what separates promotions like sweepstakes, contests, etc. from lotteries. This is important because as of right now lotteries are illegal for anyone to run unless you are the state or federal government. 

A “lottery” contains three essential elements: Chance + Consideration + Prize

Chance - Chance is also sometimes called ‘random chance’, meaning that winners are selected completely at random. Every entrant has the same chance of being a winner as other entrants, and there are no special features or advantages that make them more likely to be a winner over others. 

Consideration - Consideration is defined as anything that requires a participant to expend either A) a monetary amount or B) a significant amount of effort or skill, to enter/participate in the promotion. Here are some examples for both situations: 

A) Purchase required for entry

• Proof of purchase requirement - these can include having to buy a product to receive an entry code printed on the packaging or submit an image of a receipt with a specific purchase item to gain an entry
• UGC promotion requiring specific product(s) in the picture entry

B) Entry method requires a great amount of time/effort

• Users are required to write a 5-page essay or create an original 5-minute video
• Users are required to do something that can only be executed in a specific city, but it’s a national sweepstakes
• Attendance at a specific event is required (even if it’s free)

**NOTE - there are situations where having a purchase method of entry as one of your possible entry methods is okay. We’ll discuss these promotions more in depth below

Prize - the simplest to understand of the three elements, the prize is the reward offered for participating in the promotion. Prizes can be any number or format such as physical or digital items, gift cards, cash prizes, event tickets, vacation or travel, brand merchandise or products, etc. 

These three elements together - Chance +  Consideration + Prize - are what make a lottery. A digital promotion like a sweepstakes or contest requires removing one of the three elements and being left with the other two.

For example, a Sweepstakes would be just Chance + Prize. There's no Consideration element since the winner is randomly drawn.

A Photo Contest on the other hand would be Consideration + Prize. No Chance element since the winner is being judged & selected, not randomly drawn. (We’ll discuss the differences between promotion types more in detail later on.) 

The important thing to remember is that your promotion should never have all 3 elements of Chance, Consideration, and Prize because then it's considered a lottery. You cannot decide to run a sweepstakes with a purchase requirement and then select the winner because they bought a specific item or because they’re a fan of a specific national sports team. 

What’s The Difference Between Sweepstakes, Contests, Instant Wins, Etc.? 

Along with knowing the three elements above, you should also know how the different promotion types are classified or defined. Most of the time people might use the terms “sweepstakes”, “contest” or even “lottery” interchangeably or as umbrella terms when talking about digital promotions.

In reality, each of these and other promotion types can differ both in format and execution and thus can have different legal guidelines. Here are some key facts and definitions of the most commonly executed promotions to help highlight their differences: 

Sweepstakes 

A sweepstakes is a game of chance in which prizes are offered to participants in a random drawing. There is no skill involved and the odds of winning depend on the total number of entries received. While there can be more than one type of entry method in a sweepstakes, each entry is weighed the same. So if an entrant completed an online entry form, submitted a proof of purchase, and created a social post, they would have 3 entries - but no one entry would make them more likely to win than the other. 

Contest   

A contest is a promotion in which winners are determined based on skill by a panel of judges and based on specific criteria as outlined in the Official Rules. As we mentioned earlier, a contest includes Consideration + Prize, because the winner is being judged and selected, not randomly chosen. To be a true contest, the required task or entry method must take some amount of skill to complete (i.e. can’t be guessing the number of jellybeans in a jar). This means the Official Rules for promotions like photo contests, video contests, or essay contests should detail the skill or elements being judged, such as visual appeal, creativity, and/or how well the entry adhered to the contest theme.  

Instant Wins (or Games)

Instant wins are usually grouped under the same classification as collect & wins, scratch-offs, etc. They are very similar to sweepstakes (Chance +Prize) but with one key difference - while typical sweepstakes have an unlimited number of potential entries, games typically have a set number of prizes or game pieces distributed. This essentially means the odds of winning can be determined based on the number of pieces or prizes available and the number of people playing. 

Giveaways

Giveaways, or "fire-drills" as they're sometimes called, are sometimes considered to be the same as sweepstakes. However, true giveaways are not in the same legal category as sweepstakes or even instant wins, because there isn’t any element of Chance involved. True giveaways will follow a format such as "the first 500 people to register will get a prize” and so on. Because there is Consideration, but no Chance, true giveaways do not always have the same legal requirements for their Official Rules as sweepstakes or contests. That being said, it's still highly recommended (and depending on your state, required) to create Official Rules for your giveaway as this helps define the different elements such as age requirements, entry mechanisms, prizing, etc. 

If you're concerned about whether your sweepstakes is legally compliant or how to build compliant rules for a future marketing promotion, giveaway, or contest, reach out to us today!

How To Legally Include A 'Purchase To Enter' Option For Your Promotion

So now you know about the three elements of Chance, Consideration, and Prize, and you also understand how these elements work together within the main types of digital promotions - which is important to avoid accidentally turning your sweepstakes or contest into a lottery.

But what if you do want to run a sweepstakes with a purchase requirement to enter?  Earlier we mentioned that it was possible to include a Consideration element like a purchase requirement in your Chance + Prize promotions as long as it followed certain legal guidelines. 

This is where the Alternate Method of Entry (AMOE) comes into play.

What Is An 'Alternate Method of Entry' or AMOE? 

Remember, to not conflict with state or federal lottery laws, the element of monetary ‘Consideration’ is typically removed as a condition of entry in a sweepstakes promotion by allowing users to enter to win without making a purchase.

Generally speaking, this means there must be no cost to a participant to enter your sweepstakes. This is why you usually see the phrase "NO PURCHASE NECESSARY" present in a promotion's Official Rules, Terms and Conditions, or marketing materials. 

That being said, you can still make a purchase requirement one of your entry methods for your promotion, as long as you also offer what’s called an Alternate Method of Entry or AMOE - a free, no-cost way for participants to enter. If you want your sweepstakes promotion to accept proof-of-purchase entries (like submitting a unique code on product packaging), then you must also offer an AMOE. 

How To Offer An AMOE

AMOEs can be in several different formats, including some typical entry methods seen in digital promotions such as submitting an online form, sending an email to a specific promotional email address, or mailing in an entry. As long as it's free and available to everyone to use. 

It's important to note that the AMOE must be clearly disclosed to all viewers alongside the other entry methods, including marketing materials and T&C’s.  

A few more things to keep in mind about AMOEs:

• An Alternate Method of Entry must be available to all participants
• AMOEs can be either a digital or physical format. A digital format is typically something like a free online entry form or a user sending their registration information via email to a specific promotional email address. A physical AMOE usually requires entrants to hand-print their information on a card and then mail the card to a Sponsor’s designated PO Box or office address for manual processing.
• Entries received via AMOE must receive equal treatment to entries received via other methods. This means you cannot remove AMOE entries from the entry pool in favor of selecting a winner who made a purchase.

What Is Bonding & Registering? How Do You Bond & Register A Sweepstakes? 

If you intend to run a national promotion across the United States and your promotion meets certain criteria or thresholds, you will need to do something called Registering & Bonding your promotion with certain state authorities: specifically New York, Florida, and in some cases Rhode Island and Arizona. 

Registering & Bonding is how you tell the states the details of your promotion (entry methods, timelines, prizes, number of winners, etc.)  so they can ensure it’s legally compliant with their laws before the promotion goes live. 

New York and Florida state law require any company offering a game of chance with a prize pool over $5,000 USD to register and bond the promotion with the appropriate state regulatory authority.  

Rhode Island requires any sweepstakes offered at a retail location with a prize pool valued at over $500 to be registered. Arizona requires that any contests that involve the purchase of a product for entry must be registered with the state’s Attorney General. 

The laws are meant to protect consumers in those states from businesses who try to offer prizes as an enticement to consumers but later default in their obligation and fail to award the promised prizes to rightful winners.

Important Deadlines To Know For Bonding & Registering Promotions

Florida: Filings must occur at least 7 days prior to promotion start date 

New York: Filings must occur at least 30 days prior to the promotion start date

As a part of registering & bonding a promotion, these states also require brands to submit what’s called a winner’s list after the promotion ends. A winner’s list is basically what it sounds like: a complete list of the winners that you drew and confirmed after your promotion ended. 

The deadline to submit the winner's list to the above states is 30 days after the promotion ends. However, you can request extensions if it looks like it will take longer than 30 days after your promotion end date to confirm all the winners

Key Things To Note About Registering & Bonding

• Not every promotion is required to be registered & bonded; for example, a Business-to-Business (B2B) sweepstakes (where entry is limited to specific individuals who meet specific eligibility criteria) is not required. Neither are Contests unless a contest has a purchase requirement for a method of entry - then it would need to be bonded in AZ. 

Registering & bonding your promotion is a vital step for ensuring your promotion is legally compliant. You can ensure the process goes smoothly and with zero issues by working alongside an experienced sweepstakes vendor who is knowledgeable about the different legal requirements for administering promotions - leaving you free to focus on other priorities.

How To Make Sure Your Promotions Are Legally Compliant

There's no doubt that marketing promotions like sweepstakes, contests, and instant-win games can be incredibly effective in achieving business goals. From lead generation to boosting sales and engagement, these promotions are versatile tools that offer a multitude of benefits for businesses of all sizes.

However, with great power comes great responsibility – and running responsible and ethical digital promotions involves adhering to a complex set of legal guidelines and regulations. Failure to do so can result in severe consequences such as lawsuits, hefty fines, or even reputational damage. Staying on top of the ever-evolving legal landscape is essential, and with more businesses than ever utilizing these tactics to reach their target audience online, it's crucial to ensure that your promotions are legally compliant.

But don't worry – there are plenty of resources available to help you navigate this complex terrain. Our promotional team of experts at Brandmovers has over 25 combined years of global experience in building and executing sweepstakes, contests, and more, and will ensure your next promotional campaigns are legally compliant and wildly successful. Reach out to us today to get started!