I love it when there are new and innovative approaches to sweepstakes. That’s been the genesis and driving force behind sweepstakes promotions since they began. The term “sweepstakes” itself originated in the late 14th century to describe someone who “sweeps” (or takes) the entire stakes in a game. Sweepstakes and contests have historically been a promotional tool used to get people to do something – whether it's to come to movies on Bank Night, buy more [insert product], or even build a better mousetrap. Par exemple, we have canned food because Napoleon offered a prize of 12,000 francs to the person who can come up with the best method of safely storing food for his army. N’est-ce pas?
Today, everyone from the government, stores, brands, employers to your dear old grandma want to see people get vaccinated against COVID-19. (Obviously, a worthwhile cause unless you like working from home and eating TV dinners with your cat and watching the news of new infections and deaths.)
So what better way to encourage participation than a good ole reliable giveaway. Currently, the State of Ohio is offering a chance to win one of five $1 million prizes if you get a COVID vaccine and Utah is considering a similar sweepstakes. The LA Lakers are offering season tickets in drawings from among those vaccinated in LA County over this weekend. And, the Seattle Mariners are offering a total of 114 prizes for fully vaccinated people sitting in the stands. And, I thought protection against a deadly disease was incentive enough!
As a promotions lawyer who's done my share of “Like our webpage and you’ll be entered to win …” promotions, I love it when clients come up with new ideas because there may not be a simple yes or no answer. In law school, young, hopeful law cubs are taught to spot the issues. One issue I see in these vaccination promotions is the “consideration” issue. We all know that an illegal sweepstakes consists of prize, chance and consideration. Usually, this means you can’t pay to enter a sweepstakes. But we’re also told that “consideration” doesn’t have to mean money, and that (conceivably) certain non-monetary actions can rise to the level of “consideration” – turning your sweepstakes into an illegal lottery. In lawyer-sweepstakes class, we learned that it’s ok to require someone to watch a half-hour television show to enter, or complete a survey, or join a social media site or post a picture. We also learned, however, that it may be questionable to require entrants to disclose sensitive personal information.
Although I’ve been told that no promotion has been challenged in the past 20 years on non-monetary consideration grounds, I still wonder whether, particularly in this current atmosphere of protecting personal information, requiring someone to disclose that they have been vaccinated in order to enter a sweepstakes is A-OK. I need a password with 2 capital letters, 1 emoji, and at least 16 letters to access my medical files online and I’m told my employer can’t ask me if I’ve been vaccinated in order to ensure that we continue to wear masks in the office throughout this millennium. So, why can a sweepstakes sponsor offer me a prize only if I make this disclosure?
It makes you think. And isn’t that what lawyering is all about? Stay healthy.