So is it OK to whisper about that alternative free entry route in the small print? “No way” says Eliot Spitzer as he shakes Big Apple promotion marketers with three prosecutions.
Topic: Games of chance and skill
Who: Tylenol, CVS Corporation and Great Atlantic and Pacific Tea Company Inc trading as A&P Food Stores
Where: New York
When: May – September 2004
After years of apparently being relatively uninterested in the point, the New York Attorney General took enforcement action against three promoters in the space of five months over alleged failure to give proper prominence to an alternative free entry route in what was otherwise a purchase to enter prize draw promotion.
Each of the three defendants, retailer A&P Food Stores, McNeil PPC, Inc owners of painkiller brand Tylenol and pharmacy chain CVS Corporation, ran sweepstakes in which a free entry route was offered, but each of them was charged with failing to give proper prominence to that way of entering the promotion.
In store entry form went AWOL
A&P Stores ran a series of sweepstakes whereby consumers who purchased designated products using their A&P bonus savings card were automatically entered into a draw. The rules did provide for a free method of entry via an official entry form, but it turned out that official entry forms were simply impossible to get hold of at A&P retail outlets.
CVS ran sweepstakes in which consumers who purchased digital camera prints at CVS using their CVS Extra Care card were automatically entered into a draw. Again there was an alternative free entry route online, but the official rules indicated incorrectly that the free method of entry was via an in-store entry form, which, as in the A&P case, was not available at CVS outlets.
Free entry route in smaller print
In the Tylenol case, the brand owner offered a trip to the season finale of the reality US television programme "Survivor" as the grand prize, with entry made either via purchase of Tylenol or by way of the advertiser's website. In this case the Attorney General took issue with the advertisements for the sweepstakes. They contained large, bold print indicating that to enter consumers should "buy Tylenol" whilst the "No purchase necessary" aspect of the event was only disclosed in the legal copy at the bottom of the ad and, the enforcer said, was "contradictory" to the purchase message in the body of the communication.
The Attorney General Eliot Spitzer reached settlements with all three promoters which required that in future they gave the free entry route "equal prominence" to any other way of entering the event. The promoters were also required to enter into other undertakings as to making the draw rules available.
Why this matters:
New York laws on prize draws are very similar to those in the UK and any UK prize draw which has a purchase to enter route must also offer a genuine, realistic and unlimited alternative free entry route. The prominence given to the free entry route in the Tylenol case was not dissimilar to the approach adopted by most UK prize draw operators in similar circumstances, and although we are not suggesting that "equal prominence" for free entry routes should be the watchword here in the UK, these decisions, which have sent shockwaves through the east coast promotion marketing industry state-side, serve as a timely reminder to UK prize promoters to ensure that free entry routes are not buried too deep within prize draw rules.
It should be added that as previously reported on marketinglaw, reforms to UK prize promotion laws are in the pipeline which may legalise "purchase to enter" prize draws. For the moment, however, the law remains very similar to that in New York, so promotion marketers should be warned.