Advanced Sweepstakes and Contests
2015 ACC HANDOUT MATERIALS
CONTEST RULES TEMPLATE I
CONTEST RULES TEMPLATE II
SWEEPSTAKES LONG AND SHORT FORM TEMPLATE
RAFFLE TERMS AND CONDITIONS
OVERVIEW OF CONTEST LAW IN CANADA
CONTEST RULES TEMPLATE I
OFFICIAL RULES FOR [ ] CONTEST
NO PURCHASE OR PAYMENT NECESSARY TO ENTER OR WINA PURCHASE
WILL NOT INCREASE YOUR CHANCE OF WINNING
1. Promotion Description: The [ ] Contest (the “Contest”) begins on [ ] a.m. Eastern Daylight Time (“EDT”) and the period for entering the Contest ends on [ ] p.m. EDT (the “Entry Period”). By participating in the Contest, each entrant unconditionally accepts and agrees to comply with and abide by these Official Rules and the decisions of [ ] (“Sponsor”) which shall be final and binding in all respects. Entrants will be classified into one of four categories based on [ ]. The designation of category will be determined by solely [ ]. Following the end of the Entry Period, the judging will proceed in [ ] phases. In the first phase [DESCRIBE JUDGING]. Category Winners will be notified by email and announced online by [ ]. Each of the Category Winners will receive a Prize consisting of [ ]. The Category Winner receiving the highest total score awarded by the panel of judges will win the Grand Prize, consisting of an additional payment of [ ].
2. Eligibility: Only individuals over the age of eighteen (18) years as of [ ] who are residing and located in a jurisdiction where the contest is lawful are eligible to enter. The Contest is void where prohibited.
3. How to Enter: Participants must [ ] (the “Site”), during the Entry Period and follow the onscreen instructions. Participants must [DESCRIBE]
By submitting an entry, you confirm that you have the right, including any required permission of individuals depicted in the video, to publicly perform or display the video. You also confirm that you have the right to include in your video, and to publicly perform or display, any music accompaniment in the video.
All entries must be received during the Entry Period to be eligible. Sponsor is not responsible for late, lost, or misdirected entries that are not received in a timely manner, or are lost due to computer or electronic malfunction or other error, or due to inaccessibility of the Internet or portions thereof.
4. Additional Rules Relating to the Submission of [ ]: By submitting any [ ] to the Contest, Participants hereby grant to Sponsor and its affiliates, subsidiaries, licensees and assigns, an irrevocable, perpetual and royalty-free right to use, reproduce, edit, display, transmit, prepare derivative works of, modify, publish and otherwise make use of the submitted [ ] in any and all media, whether now known or hereinafter created, throughout the world and for any purpose. In addition to other things, the rights granted to Sponsor include but is not limited to the right to censor, compress, edit, feature, caption, affix logos to, and to otherwise alter or make use of the submitted [ ].
In addition, by submitting any video to the Contest, Participants hereby represent and warrant that the submitted [ ] or information does not and shall not infringe on any copyright or other right of any third party, and Participant has the right to grant any and all rights and licenses granted to Sponsor herein, including but not limited to all necessary rights under copyright, free and clear of any claims or encumbrances. Sponsor may, but shall have no obligation to, post, display or otherwise make publicly available any content submitted by you, and may in its sole and unfettered discretion, remove, edit, modify or delete any portion of the [ ] or information that you submit to the Contest.
5. Privacy: Information provided to enter the Contest will not be sold to third parties but may be shared as may be necessary for the purposes of conducting and judging the Contest and awarding prizes. The Sponsor, its affiliates, and companies supplying prizes (or parts thereof) in connection with this Contest may from time to time contact entrants via email concerning the Contest, and each entrant consents to receiving such communications via email.
By submitting any [ ] to the Contest, the entrant acknowledges and agrees that any content submitted may be made available for viewing, voting and comment on by the public, and understands that comments with which the entrant disagrees or is unhappy about may be published or otherwise become associated with any submitted video. Entrants hereby waive any privacy expectations that they may have with respect to any video submitted to the Contest.
6. Automated Entries Prohibited: No mechanically reproduced, incomplete, forged, software generated or automated multiple entries will be accepted.
7. Winner Selection: DESCRIBE
8. Prize Details:
Category Winners: Each of the Category Winners will receive [ ]. Grand Prize Winner: The Category Winner receiving the highest total score awarded by the panel of judges will win the Grand Prize, consisting of an additional payment of [ ].
9. General Prize Conditions: Potential Winners will be required to execute an Affidavit of Eligibility, Release of Liability and Prize Acceptance Form (collectively, the “Prize Claim Documents”). If a Winner fails or refuses to sign and return the Prize Claim Documents within three (3) days of prize notification, the Winner may be disqualified. Prizes are not transferable and not assignable. No substitutions of prizes will be allowed, except Sponsor reserves the right to substitute prize(s) of comparable or greater value in the event a prize or any portion thereof becomes unavailable for any reason. Winners shall be solely responsible for all taxes and fees or costs associated with any prize, including but not limited to any federal or state or other income tax, ground transportation (except as expressly stated above), meals (except as expressly stated above), gratuities, personal expenses and any other expenses not expressly specified herein.
10. Limitations of Liability The Sponsor assumes no liability, and shall not be liable, for typographical or other errors in the offer or administration of the Contest including, without limitation, errors in the printing or display of the offer and official rules, selection, notification and announcement of the Category Winners or Grand Prize Winner, or distribution of the prizes. The Sponsor is not responsible for any incorrect or inaccurate information, whether caused by internet users or by any of the equipment or programming associated with or utilized in the Contest and assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to any systems associated with the Contest.
11. Release: Acceptance of a prize constitutes the prize winner’s permission for Sponsor to use prize winner’s name and likeness for advertising and/or promotional purposes worldwide and in all forms of media in perpetuity without further compensation or authorization. Participants agree that Sponsor and its affiliates, and their officers, employees, agents and representatives (collectively, the Sponsoring Entities”), shall not be responsible for any losses, damages or injuries of any kind resulting from participation in the Contest or from Participants’ acceptance, receipt, possession and/or use or misuse of any prize. Participants also agree that the Sponsoring entities have not made and shall not in any manner be liable for any warranty, guarantee, or representation, whether express or implied, with respect to any prize, including without limitation, the prize’s quality or fitness for a particular purpose. Sponsor reserves the right in its sole discretion to disqualify any individual who is found to be tampering with the entry process or the operation of the Contest or the Site, to be acting in violation of these Official Rules, or who otherwise takes actions that do or are intended to disrupt or undermine the legitimate operation of the Contest. Sponsor also reserves the right in its sole discretion to disqualify any entry containing any obscene, offensive or otherwise inappropriate comments or other matter.
12. Governing Law: All issues and questions concerning the construction, validity, interpretation and enforceability of these Official Rules shall be governed and construed in accordance with the internal laws of the State of New York without regard to the choice of law provisions thereof.
13. Name of Winner: For the name of winners, refer to [ ] or send, within six months from the end of the Entry Period, a self-addressed, stamped envelope to: [name and address]. Washington and Vermont residents may omit return postage.
CONTEST RULES TEMPLATE II
The [name of contest] is a volunteer-based fundraising program conducted by [Sponsors’ names] to benefit [benefitting Charity]. These Rules apply to all participants. The Sponsors shall make all determinations as to whether the Rules have been complied with, and the decision of the Sponsors as to any issue is final.
Sponsors: ____________ and ______________ are Sponsors of this Contest.
Eligibility: No purchase is necessary to participate in the Contest and participants must be 18 years of age or older. The Contest is open to residents of the 50 United States and United States Territories. Employees of [Sponsors’ names] and their immediate family are not eligible to win.
“Immediate Family” is defined as the spouse, parents, in-laws, children, siblings, and grandchildren (including step-children and step-grandchildren, and adopted children and grandchildren), of the employee and his/her spouse; individuals for whom an employee is the legal guardian; and individuals who are not legally related to, but who reside with, an employee.
Entry: You will be entered to win by registering to raise funds through a [enter fundraising mechanism/platforrm] at [enter website] and obtaining donations from donors through [fundraising page/event] as well as check or money order donations sent via mail along with a “Check Submission Form” to [address and ATTN: ____].
Time: For purposes of determining which registrants will be entered in the contest, participants will be counted only if they register to raise funds between 12:01 am Central Time on [date] and 11:59 pm Central Time on [date]. All funds must be received by Sponsors no later than 5:00 pm Central Time on [date]. The winner will be determined and notified no later than 6:00 pm Central Time on [date].
Prize: The prize consists of (a) round-trip air travel for [#of people] from any point of origin in the continental United States to [destination] to visit attractions in the area including [sample attractions] (b) hotel accommodations ([# of rooms]) for [number of] nights; (c) complimentary ground transportation to and from the airport and accomodations; and (d) $[amount] toward meals and incidentals while in [destination]. Arrangements for air travel, hotel reservations, and ground transportation will be made by Sponsors on behalf of the Winner and [# of] companions. The traveling companions must be at least 18 years of age or the Immediate Family of the Winner. If the Winner and/or the traveling companions live less than 150 miles from [destination], Sponsors may, in their sole discretion, arrange for an alternate form of transportation to and from [destination].
The estimated fair market value of the prize is $[amount]. However, the actual value may be more or less than this amount.
Determination of Winner: There will be one winner (“the Winner”) of the contest. The Winner will be the participant who raises the most funds in accordance with the giving procedure outlined above. The Winner will be notified by telephone or e-mail, and subsequently announced to the public. The selection of the Winner by Sponsors is final and binding on all participants.
Dates of Travel: The dates of travel, and the nature and all details of the visit, will be determined by a representative of Sponsors and the Winner.
Should the Winner choose to not accept the trip, or be unable to travel to at a time mutually agreeable to the Winner and the Sponsors, there is no cash option and the prize will be forfeited.
The prize is not transferable.
Winner’s responsibilities: The Winner and any companions are responsible for transportation to and from their homes and the departure airport or other transportation terminal (if any), checked baggage and other additional fees charged by the airline, ground transportation in and around [destination] (other than to and from the airport and accommodations), ancillary hotel expenses, and all other expenses incurred in connection with their travel or their stay in the [destination] area other than as included in the prize described above.
Taxes: The value of the prize is includible in the Winner’s income. Sponsors are required to report the actual value of the prize to the Internal Revenue Service. The Winner agrees to provide his or her valid name, address, and Social Security number to Sponsors for tax reporting purposes. The Winner is responsible for paying all federal, state, and local income and other applicable taxes that are due in connection with receipt of the prize.
Additional Agreements: The Winner and any traveling companions will be required to execute a Winner’s Agreement with Sponsors as a condition of accepting the prize. The agreement includes releases of liability in favor of Sponsors.
Consent to Publicity. By entering the Contest, the Winner consents to Sponsors’ use of his or her name and/or photograph in any publicity, publications, promotional and marketing material, advertising, and any other print materials, web pages, electronic or other communications published or distributed by Sponsors, and to sign a separate agreement to this effect.
Miscellaneous Conditions: In the event that the operation or administration of the Contest is impaired or prevented in any way for any reason, including, but not limited to fraud, change of condition, or other technical problems, the Sponsors may in their sole discretion, either: (a) terminate the Contest; (b) suspend the Contest to address the impairment and then resume the Contest in a manner that best conforms to the spirit of these Rules; and/or (c) substitute other prizes for any prize set forth in these Rules that becomes unavailable for any reason. The Sponsors reserve the right in their sole discretion to disqualify any individual found to be tampering with the entry process or the operation of the Contest or acting in violation of these Rules.
The determinations of Sponsors are final and binding with respect to any matter arising out of the interpretation or application of these terms and conditions.
For a confirmation of the winner, send a hand-written, self-addressed, stamped envelope to [address and ATTN: ___________].Requests for a confirmation of the winner must be received by [date].
SWEEPSTAKES LONG AND SHORT FORM TEMPLATE
SWEEPSTAKES – LONG FORM OFFICIAL RULES TEMPLATE
Travel Giveaway Official Rules
NO PURCHASE OR DONATION NECESSARY. VOID WHERE PROHIBITED. A PURCHASE OR DONATION WILL NOT INCREASE YOUR LIKELIHOOD OF WINNING. THESE RULES GOVERN ALL ASPECTS OF PARTICIPATION AND PRIZE AWARDS.
Introduction: [Name of Sweepstakes] ("Sweepstakes") is sponsored by [Sponsor and Sponsor’s Address] ("Sponsor"). Sweepstakes is offered in cooperation with [benefitting charity] through the [Sponsor] website announcing many different prizes. The Promoter for the Sweepstakes is [Vendor] (“Promoter”), [Vendor address]. Winners will be selected in a random drawing from among all entries received across all individual Sweepstakes. The prize for which an entrant is eligible depends on Sweepstakes entered. All applicable federal, state, provincial, municipal, territorial and local laws and regulations apply.
Agreement to Official Rules: By entering, you indicate your full and unconditional agreement to (a) these Official Rules and (b) Sponsor’s decisions, which are final and binding. Winning a prize is contingent upon fulfilling all requirements set forth herein.
Timing: The Sweepstakes begins on [start date] at 12:00 a.m. Eastern Time ("ET") and ends on [end date] at 11:59 p.m. ET ("Promotion Period"). Promoter’s computer is the official time-keeping device for this Promotion.
Eligibility: The Sweepstakes is open to legal residents of the fifty (50) United States (and the District of Columbia) who are at least eighteen (18) years of age or older. Void where prohibited or restricted by law. Residents of Puerto Rico are not eligible. By participating, entrant agrees to abide by these Official Rules and the decisions of Sponsor, which are final and binding in all respects.
How to Enter: During the Promotion Period, visit [WEBSITE], and follow the links and instructions to complete and submit the entry, including a valid home address. P.O. Boxes are not permitted. You will receive one (1) entry into the Sweepstakes. There is a limit of one (1) entry per person per prize per day until the Promotion Period expires. Multiple entrants are not permitted to share the same email address. Any attempt by any entrant to obtain more than the stated number of entries by using multiple/different email addresses, identities, registrations and logins, or any other methods will void that entrant's entry and that entrant may be disqualified. Use of any automated system to participate is prohibited and will result in disqualification. In the event of a dispute as to any registration, the authorized account holder of the email address used to register will be deemed to be the entrant. The "authorized account holder" is the natural person assigned an email address by an Internet access provider, online service provider or other organization responsible for assigning email addresses for the domain associated with the submitted address. The potential winner may be required to show proof of being the authorized account holder.
Alternative Method of Entry: You may also enter each Sweepstakes here [LINK TO AMOE FORM] during the Promotion Period. There is no donation required to enter each Sweepstakes. Limit of one (1) entry per person per prize per day until the Promotion Period expires.
Drawing: After the Entry Period, Sponsor will select one (1) potential winner per prize in a random drawing of all entries received during the Promotion Period. The odds of being selected depend on the number of entries received.
Notification and Requirements of Potential Winners: Sponsor will notify the winner by email with instructions on how to claim the prize. If a potential winner does not respond and comply with the instructions in the direct message within three (3) days after Sponsor sent the direct message, the winner will forfeit the prize and Sponsor may award the prize to an alternate entrant. Only three (3) alternate entrants will be contacted. Except where prohibited by law, a potential winner may be required to complete and return an affidavit of eligibility and liability/publicity release.
Terms of Prizes: Any prize details not specified below will be determined by Sponsor in its sole discretion. Travel prizes are subject to availability and blackout dates. Restrictions may apply and the Sponsor in its sole discretion will provide prize details during the redemption process. A prize may not be transferred and must be accepted as awarded. You may not request cash or a substitute prize; however, Sponsor reserves the right to substitute a prize with another prize of equal or greater value if the prize is not available for any reason. Payment or liability for any and all federal, state, or local taxes is the sole responsibility of the winner. Consult your tax professional with questions regarding potential tax liability.
Name of Prize
General Conditions: In the event that the operation, security, or administration of the Sweepstakes is impaired in any way, including, but not limited to fraud, virus, or other technical problem, Sponsor may, in its sole discretion, either: (a) suspend the Sweepstakes to address the impairment and then resume the Sweepstakes in a manner that best conforms to the spirit of these Official Rules; or (b) award the prizes at random from among the eligible entries received up to the time of the impairment. Sponsor reserves the right in its sole discretion to disqualify any individual who tampers with the operation of the Sweepstakes, violates these Official Rules, or acts in an unsportsmanlike or disruptive manner. Sponsor reserves the right to seek damages from any person who seeks to undermine the legitimate operation of the Sweepstakes. Failure by Sponsor to enforce any term of these Official Rules shall not constitute a waiver of that provision. Proof of sending any communication to Sponsor by mail shall not be deemed proof of receipt of that communication by Sponsor. In the event of a dispute as to the owner of an entry, the authorized account holder of the email account used to enter will be deemed to be the entrant.
Release and Limitations of Liability: By participating in the Sweepstakes, you agree to release and hold harmless Sponsor, Promoter and [benefitting charity], its parent, subsidiaries, affiliates, and each of their respective officers, directors, employees, and agents (the “Released Parties”) from and against any claim or cause of action arising out of participation in the Sweepstakes or receipt or use of any prize, including, but not limited to: (a) unauthorized human intervention in the Sweepstakes; (b) technical errors related to computers, servers, providers, or telephone, or network lines; (c) any errors on the Twitter platform that may prevent an entrant from entering or receiving direct messages; (d) printing errors; (e) lost, late, postage-due, misdirected, or undeliverable mail; (f) errors in the administration of the Sweepstakes or the processing of entries; or (g) injury or damage to persons or property which may be caused, directly or indirectly, in whole or in part, from entrant’s participation in the Sweepstakes or receipt or use of any prize. You further agree that in any cause of action, the Released Parties’ liability will be limited to the cost of entering and participating in the Sweepstakes, and in no event shall the Released Parties be liable for attorney’s fees. You waive the right to claim any damages whatsoever, including, but not limited to, punitive, consequential, direct, or indirect damages.
Disputes: You agree that any and all disputes, claims and causes of action arising out of, or connected with, the Sweepstakes or any prize awarded shall be resolved individually, without resort to any form of class action, and exclusively by the appropriate court located in the State of [enter state]. All issues and questions concerning the construction, validity, interpretation and enforceability of these Official Rules, your rights and obligations, or the rights and obligations of the Sponsor in connection with the Sweepstakes, shall be governed by, and construed in accordance with, the laws of the State of Washington, without giving effect to any choice of law or conflict of law rules (whether of the State of [enter state] or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the State of [enter state].
SHORT FORM RULES (This should be placed on each prize page along with the prize restrictions. The short form rules below will link to the long form rules’ standalone page)
NO PURCHASE OR DONATION NECESSARY TO ENTER. Open to legal US residents who are 18 years of age or older. Sweepstakes ends[enter date]. Donation not required for entry. Alternate method of entry is available. Void where prohibited by law. See Official Rules for details.
PRIZE TERMS AND CONDITIONS TEMPLATE (This should be placed on each prize page along with the prize restrictions)
Dates of Travel/Blackout Dates
Transportation to Location Included?
How to Book Travel/Redeem Prize
Other restrictions/Prize Details
RAFFLE TERMS AND CONDITIONS
TERMS & CONDITIONS
Thank you for supporting the [name of raffle], conducted by [authorized organization]. Your purchase of one or more raffle ticket(s) signifies your agreement to the following Terms & Conditions. In the event of any dispute, a reasonable interpretation or determination by [authorized organization] regarding the application of these Terms & Conditions is final and binding. The [name of raffle] is void where prohibited by law.
To be eligible to purchase a ticket, you must be at least 18 years old and a resident of the United States. The following persons, and their employees and immediate family members, are not eligible to purchase a ticket: officers, directors, and employees of [authorized organization]; media and prize sponsors; and volunteers; ticket outlets and sellers; and auditors and accountants.
“Immediate family members” includes the spouse, parents, grandparents, great-grandparents, brothers, sisters, children, grandchildren, and great-grandchildren of the employee and his/her spouse. This definition also includes individuals for whom an employee is the current legal guardian or individuals who are not legally related to but who reside with an employee, including "step" and adoptive relationships. The determinations of St. Jude are final and binding with respect to any matter arising out of the interpretation or application of these terms and conditions.
A ticket purchased by an ineligible person is void, cannot be a winning ticket. No refunds will be made to ineligible purchasers.
A ticket issued in exchange for a check returned for “insufficient funds,” or for a credit card charge that was “declined,” or reported as “invalid” or “stolen” is void, and cannot be a winning ticket.
A ticket represents a chance to win the opportunity to accept an offer of the stated prize. All sales of tickets are final, and no refunds will be paid. Tickets, prizes, receipts, and any winner’s rights are not transferable. Purchases made via the toll free number are limited to a maximum of 50 tickets per phone transaction. The IRS has ruled that a payment for a raffle ticket is a tax-deductible charitable contribution only to the extent the amount of the payment exceeds the price of the ticket.
The winning ticket for each prize will be selected by a random drawing. All tickets have an equal chance to win. Ticket purchasers need not be present to win.
Each prize will be awarded to a winner. If the ticket has more than one name on it, the prize will be awarded to the eligible individual whose name appears first on the ticket. That individual is solely responsible for allocating the value of the prize among the purchasers.
[Authorized organization] will notify each winner in writing, sending a Winner Notification Agreement (“WNA”) by certified U.S. mail, return receipt requested, to the mailing address provided by the purchaser. Each winner must accept the prize, “as is,” by signing the WNA and returning it to [authorized organization] within 7 days after the date the WNA was received. If a winner fails to accept the prize, the prize is forfeited and no substitute or alternative prize will be provided. A forfeited prize will be awarded to the next winner that was selected in the drawings.
Acceptance of a prize constitutes permission for [authorized organization] to use the winner’s name, picture, video image, and relevant quotes to promote the[name of raffle], and agreement by the winner that the prize will not be used for fundraising for another charity.
[Authorized organization] may substitute a prize of equal or greater value if the stated prize is not reasonably available. Travel prizes are subject to availability, and other restrictions may apply.
The winner of each prize shall have no rights in or to the prize itself until he has timely executed the
WNA and returned it to [authorized organization], and until delivery of the prize to the winner has been completed. Until that time, as between [authorized organization] and the winner, each prize remains the sole property of [authorized organization].
The winner accepting the house will take ownership subject to all applicable federal, state, and local land use restrictions, and to any covenants, rules, or other restrictions administered by a homeowners’ or condominium association, or other community.
The value of each prize is includible in the winner’s gross income, and may be subject to reporting by [authorized organization] to the Internal Revenue Service. Each winner is solely responsible for payment of all federal, state, and/or local income, sales, or use taxes due on account of his or her acceptance of the prize. The winner of the [name of raffle] agrees that the value of the prize reported by [authorized organization] for income tax and other purposes will be based on the written appraisal obtained by [authorized organization] from a licensed appraiser.
With respect to any prize whose value is more than $[current amount], the Internal Revenue Service requires [authorized organization] to withhold federal income tax at the rate of 28%, and the winner must pay the amount of tax to be withheld to [authorized organization] as a condition of transfer of ownership of the prize. Winners should consult a tax professional.
Each winner accepts the prize “as is,” and without recourse to [authorized organization] with respect to any defect, injury, damage, or other problem that may arise or become apparent with respect to the prize. St. Jude disclaims any and all warranties with respect to each prize, including but not limited to any warranty of fitness for a particular purpose.
Limitation of liability
Because [authorized organization] has no right to control, nor exercises any control, over the personnel, equipment, or operations of any builder, seller, or manufacturer of any prize, or any part of any prize, [authorized organization] assumes no responsibility for any financial loss, personal injury, property damage, or other loss, accident, delay, inconvenience, or irregularity that a winner may experience by reason of (1) performance or nonperformance by any supplier; (2) wrongful, careless, negligent, or unauthorized acts or omissions by any supplier or its employees, or by any other party not under the control of [authorized organization]; (3) any defect, breakdown, or other failure of any aircraft, train, automobile, ship, accommodation, or other equipment or instrumentality owned, operated, or otherwise used by a supplier; (4) acts of God and acts or omissions of third parties; (5) mechanical or construction failures; or any other event or condition beyond [authorized organization]’s control. Each winner hereby releases and holds [authorized organization] harmless with respect to any claim based on any such occurrence.
[Authorized organization] shall in no event be liable for special or consequential damages arising from the use or ownership of any prizes.
CANADA CONTEST TERMS
OVERVIEW OF CONTEST LAW IN CANADA
Author: Daniel Cole (Gowling Lafleur Henderson LLP)
Phone: (416) 814-5666
This document is intended to provide a general overview of the regulation of contests in Canada under: (i) the Federal Criminal Code; (ii) the Federal Competition Act; and (iii) the Quebec Act respecting lotteries, publicity contests, and amusement machines. This overview should not be relied on as legal advice relating to your specific promotion.
1. CRIMINAL CODE1
With the exception of certain government-run and licensed charitable or religious-purpose lotteries, the Criminal Code prohibits any forms of betting, which includes contests that entrants are required to pay, make a purchase or provide other valuable consideration to enter, or which one can win solely by chance.2 To avoid classification as an illegal lottery, it is essential that a contest include an element of skill, and that there be no requirement for payment, purchase or other valuable consideration to be provided in order to enter the contest (with very limited exceptions). The following key considerations will assist in avoiding a situation that could result in a criminal offence being committed.
A. The requirement for an element of skill
The Criminal Code prohibits any plan for giving away property, such as a prize, by any mode of chance whatever, and also prohibits the advertising of such a plan.3 To avoid this prohibition, contests (which are typically ‘random draw’ chance based promotions) add a skill component in the form of a mathematical ‘skill testing question’.
Typically, a mathematical question involving all four orders of operation (i.e. addition, subtraction, multiplication and division) will suffice if the numbers are of a reasonable level of difficulty. Multi-step equations meet the requisite legal standard and usually incorporate either brackets or words. For example:
Multiply 12 x 12
Divide by 6
Most importantly, in determining the correct answer, the sponsor must follow the proper order of mathematical equations; namely: brackets, multiplication/division, addition/subtraction to ensure there are no inconsistencies between the answer sought, and the actual correct response. It is advisable to make the answer a whole number to avoid the issue of rounding.
The usual additional requirements to meet this rule are that the question is to be answered “without mechanical or other aid”. If the potential winner incorrectly answers the skill-testing question, then he/she must be required to forfeit the applicable prize. The skill testing question is typically administered on the declaration and release form (a requirement for an eligible contest winner to be confirmed as a “winner”) – but, can also be administered in-person or over the phone.
The requirement for a skill-testing question would not be applicable in a pure “skill” based contest (e.g. consumer generated content submissions that are judged on the basis of stated criteria).
B. The “No Purchase Necessary” rule
The Criminal Code prohibits anyone from giving away “goods, wares or merchandise” or other “valuable security” by any game of chance or mixed chance and skill in which the contestant pays money or other valuable consideration to enter.4
To comply with this prohibition, contests are often designed so that entry ballots may be obtained free of charge and have no pre-conditions that involve other forms of valuable consideration. For contests that require the entrant to pay money or provide “other valuable consideration” as a condition of entering the contest, it is almost always necessary to provide an alternative “no purchase necessary” entry mechanism. It is important to note that a quiz or survey may count as “other valuable consideration” – akin to an illegal purchase requirement – if it is lengthy, requires the submission of sensitive personal and/or business information. In such cases, the conservative approach is to include a “no quiz necessary” or “no survey necessary” alternative means of entry (e.g. write-in essay entry).
There are other sections of the Criminal Code that also deal with the issue of purchase requirements – but, require a complex legal analysis that is beyond the scope of this overview.
2. COMPETITION ACT5
This federal statute regulates any contest, for the purpose of promoting, directly or indirectly, any business interest or the sale of a product or service. In particular, the Competition Act requires that contest promoters must:
Provide an adequate and fair disclosure of the number of prizes,6
Provide an adequate and fair disclosure of the approximate value of the prizes,7
Indicate whether there is any distribution of prizes by region, and any other fact that may affect the chances of winning,8
Not unduly delay the distribution of prizes,9
Provide the required disclosure on all packaging, advertising and promotional materials relating to the contest (i.e. ‘Mini Rules’ – see below)10
To assist marketers in complying with the Act, the Competition Bureau of Canada has released guidelines that outline its approach to enforcement in respect of promotional contests.11 The key requirements include:
A. Adequate and fair disclosure of the number of prizes
The number of prizes available to be won should be disclosed in both the contest materials and the rules. Additionally, a specific description of each prize using brand names and model numbers where appropriate, and where consent has been obtained, should be incorporated into at least the rules. In Quebec, some description of the prizes is required in the promotional material as well (see below).
If certain items associated with the prize are not to be included as a part of the prize, then these items should be expressly excluded. For example, if the prize is a trip that includes air travel, but not transportation from the winner’s home to the nearest airport, such an exclusion should be expressly mentioned.
B. Adequate and fair disclosure of the approximate value of prizes
The approximate retail market value of the prize(s) offered must be disclosed. This value should be based on the market where the contest is being conducted. In the contest materials and rules, this should be disclosed as the “approximate retail value” rather than ‘value’ or ‘retail value’ (unless the prize is a gift card or cash – i.e. something with an exact value). If the suggested list price of the product is ordinarily higher than the usual retail selling price, then the list price should not be used. For trip prizes, the “approximate retail value” of the trip should be based on a departure example (accompanied by a note stating that the actual retail value may vary depending on the point of departure and further that no difference between the actual and approximate retail values will be awarded).
C. The distribution of prizes by region and any other fact known that might affect the chances of winning
If prizes are available to be won on a regional or other allocated basis, then this must be clearly disclosed, and the particulars of the regional allocation must be provided. For example, “2 prizes will be available to be won in Quebec and 5 prizes will be available to be won Nationally (excluding Quebec)”.
The chances/odds of winning for each prize (with regard to each region, if applicable) must also be disclosed when such chances/odds can be calculated in advance. When the odds depend on the number of eligible entries received, it is sufficient to include a statement to that effect, along with the number of prizes as discussed above.
D. Distribution of prizes not to be unduly delayed
This requirement has rarely posed a problem for contest organizers. However, it is important to ensure that there are sufficient prizes available so that all anticipated winners can receive them in a timely manner. If the number of winners may vary depending on the number of entries, it is important to overestimate demand to avoid potential liability under section 74.06(b). What constitutes “undue delay” is not defined in the Competition Act – however, there have been decisions by the Competition Bureau indicating that a six month delay is unacceptable. Subject to the Quebec filing requirements (see below), contest sponsors should attempt to ensure that all prizes are awarded as soon as reasonably practical following the conclusion of the contest.
E. Disclosure requirements for all packaging, advertising and promotional materials relating to the contest (“Short Form Rules”)
When promoting a contest in advertising materials, the contest’s essential features should be disclosed to comply with the disclosure requirements of the Competition Act, which incorporates by reference conformance with other laws, such as the Criminal Code discussed in more detail above. The Enforcement Guidelines published by the Competition Bureau indicate that disclosure should be made in a “reasonably conspicuous manner” (…) "at a time before the potential entrant is inconvenienced in some way or committed to (…) the contest."12 While these Enforcement Guidelines do not have the force of law, they do provide an accurate indication of what the regulatory authorities would look for in the event a contest investigation were to occur.
To comply with the Competition Act, ideally all contest materials should generally aim to indicate, explain, disclose or provide:
the period during which the contest will be run and the closing date/time;
the total number of prizes available to be won;
the approximate retail value of each type of prize;
a description of the prizes;
if applicable, advise that the prizes will be drawn over time (e.g. if there are monthly/weekly/daily random draws);
the chances/odds of winning, if known, and any other known fact(s) that materially affect the chances of winning;
the fact that a correctly answered skill-testing question is required to win (for random draw contests);
the method of entering the contest, including reference to the fact that a purchase is not required (e.g., “No Purchase Necessary”), or that a purchase may be required and how the contest may also be entered without a purchase;
if applicable, describe the regional or other pre-determined allocation of prizes or qualifying entries;
eligibility requirements (e.g. jurisdiction, age, retailer location, etc); and
the fact that the contest rules should be examined for complete details and where they can be obtained.
Quebec has its own regulatory framework for contests and lotteries, in addition to the requirements under the Competition Act and Criminal Code discussed above.13 This framework creates additional filing, tax and disclosure requirements for contests that may be entered by Quebec residents. As such, a special consideration of these rules is necessary when running a contest open to Quebec residents.
A. Filing and tax requirements
The Régie des alcools, des courses et des jeux (the “Régie”) is responsible for the administration of contests in Quebec.14 All contests that are open to Quebec residents must be registered with the Régie, unless the total prize value is under $100. Any amendments to, extensions of, or withdrawals of such contests are subject to Régie approval. After the conclusion of the contest, a “winner’s list” must be submitted to the Régie within 60 days.
In addition to these filing requirements, the Régie assesses taxes on both national contests open to Quebec residents, and contests run only within Quebec. The applicable tax rates are 3% of a national prize, and 10% of any prizes allocated only to Quebec residents. For international contests, the applicable tax rate is 0.5%.
Finally, where the value of any single prize exceeds $5,000, or the total prize value exceeds $20,000 the Régie may require a security bond for contests open to Quebec residents. This bond is a one-page document that is sent to the contest sponsor after registration with the Régie. It provides security for the prizes until they have been awarded or until the Régie has been notified that there are no winners from Quebec. Alternatively, contest sponsors can (and typically do) provide a cheque (in the requested amount) as security. Note, the security (cheque or agreement) is released once the contest is over and the prize(s) administered.
B. The minimum disclosure requirements in contest advertising and rules
All contest materials used in Quebec must:
state the number and description of the prizes offered in the contest and their respective values.
mention that only one prize is offered, or specify the smallest and largest value of the prizes;
state how and where eligible entrants may obtain the text of the contest rules; and
where participation requires the purchase of a good or service, state the nature of the skill-testing requirement that an entrant must satisfy to claim a prize;
C. Other issues
The Régie requires the contest sponsor to keep all contest entry forms/ballots for 120 days following the draw date.
The Régie may request that contest-related advertising materials be filed with the Régie.
The rules, website and all materials entering the Quebec market must be available in French
Contest rules in Quebec must:
not lead anyone to believe that a person: (a) has won a prize or may win a prize when the person has not entered the contest; or (b) may enter a contest for the purpose of receiving a prize or being able to win a prize, when in fact all participants receive an identical “prize”; and
include the following text: “Any litigation involving a Quebec resident respecting the conduct or organization of a publicity contest may be submitted to the Régie des alcools, des courses et des jeux for a ruling. Any litigation involving a Quebec resident respecting the awarding of a prize may be submitted to the Régie only for the purpose of helping the parties reach a settlement.”
4. ADDITIONAL CONSIDERATIONS
A. Intellectual Property Rights of Third Parties
The trade-marks and copyrights of third parties must be respected in contests. Branded prizes or premiums listed or pictured in any advertising materials must be appropriately marked, and permission must be received from the owner of the intellectual property. For example, contest rules and advertising materials should not reference a brand name product or display a picture of one without first obtaining express permission from the appropriate rights holder(s) to use the name or an image of their product.
Some companies may allow others to use their name and trade-marks in relation to a promotion/contest (e.g. Apple – for certain products15), but only if certain language is included in the contest rules and advertising. In these cases, it may be necessary to consult the company in question to determine their specific requirements.
Additionally, individual persons have rights to control the use of their image. As such, contest sponsors cannot use the name or likeness of any individual, including a contest winner, without their permission. For contest winners, the declaration and release forms required for contest winners typically include a clause granting permission to use the winner’s name and likeness.
B. Prize Substitution and Modification
The contest rules must always state that the contest sponsor has the right to: (a) place reasonable restrictions on the availability or use of any prize; and/or (b) substitute any prize for any reason with a prize or a prize component(s) of equal or greater value, including, without limitation, but solely at contest sponsor’s sole discretion, a cash award. In effect, this gives the contest sponsor the right to substitute any prize with an equivalent cash (or other) alternative. If a winner requests an alternative prize, it is typically within the contest sponsor’s prerogative to allow or deny any such request provided the contest rules state that the prize: “must be accepted as awarded and is not transferable, assignable and/or or convertible to cash (except as may be specifically permitted by Contest Sponsor in its sole and absolute discretion)”. If the contest sponsor wishes to permit a prize winner to alter his/her prize (e.g. extending a stay for a trip prize), a separate release should be prepared for that winner outlining (among other things) that he/she will be responsible for any and all costs or expenses associated with the modified prize.
C. Declaration and Release Forms
Generally, all contests will require the winner(s) to sign a declaration and release form, which (among other things) requires the entrant to: (i) confirm compliance with the Official Rules and Regulations; (ii) acknowledge acceptance of the applicable prize as awarded; (iii) release a defined group of “Released Parties” from any and all liability in connection with the contest, the entrant’s participation therein and/or the awarding and use/misuse of the applicable prize or any portion thereof; and (iv) agree to the publication, reproduction and/or other use of the entrant’s name and/or photograph or other likeness without further notice or compensation, in any publicity or advertisement carried out by or on behalf of the contest sponsor in any manner whatsoever, including print, broadcast or the internet. Note - for trip prizes, ALL travellers should be required to sign a specified travel declaration and release form prior to travel documents being issued.
In certain circumstances, however (e.g. low value prizing that is not dangerous – e.g. gift cards valued at less than $50), a declaration and release may not be practically reasonable or desirable. In such cases, the contest rules should be set-up so that the entrant is awarded the prize once he/she correctly answers the skill-testing question – but, without the need to sign a declaration and release form. In such circumstances, the contest rules should indicate that by participating in the contest and accepting the applicable prize, the entrant agrees to the standard terms that would otherwise have been included on the declaration and release form.
Please feel free to contact me for additional information on administering contests in Canada.