Many businesses implement various advertising tactics to promote and successfully gain awareness and, ultimately, customers. Before moving forward with a marketing or advertising campaign, Mullin Rybicki Klopack, PC can offer you legal guidance on how to promote your business. Issues such as contest and prize promotions, using a competitor’s mark and comparative references to your competition should be addressed before you go to market.

Social Media

Social Media is an ever-expanding marketing and branding platform for businesses of all types. We encourage our clients to participate in the use of social media whenever and wherever appropriate to promote their brands and define their public image in the marketplace. However, with expanded use, comes expanded scrutiny and regulation. It is important to make sure your business use complies with applicable state law, assorted regulatory rules, and FTC guidelines for advertising, as well as data protection and privacy laws. Our privacy lawyers can help you navigate these rules so that you can reap the benefits of branding and advertising through social media.

Promotions, Contests, and Sweepstakes

Prize promotions fall into two categories: games of chance and contests of skill.

Chance promotions can take various forms, such as sweepstakes, where winners are determined by a random drawing, and “instant win” promotions, where winning game pieces are randomly seeded in the overall run of pieces. Whatever the form, they share one common element: winners are determined solely by chance. Chance promotions are subject to a host of state regulatory requirements, including registration, disclosure (including odds of winning), and in some state, escrow requirements. If combined with any form of payment or other consideration (even purchase requirements), chance promotions can become illegal lotteries, which may result in state enforcement action and/or civil damages.

Contests, on the other hand, are judged on the basis of skill. Properly-structured and implemented contests, therefore, generally are exempt from laws regulating chance promotions because the element of chance is absent.

Both contests and chance promotions are governed primarily by the laws of the contract, with the “official rules” serving as the parties’ agreement. Game and contest rules, therefore, should explicitly describe, among other things, methods of entry, limitations on number of entries (if applicable), methods of determining winners, eligibility (e.g., age, residence, and the exclusion of employees and the sponsor’s family members), commencement and expiration dates for accepting entries, limitation on the sponsor’s liability, disclaimer of liability for lost, late, and misdirected mail and for printing and typographical errors on game pieces.

We can assist you in developing and executing your prize promotion, from drafting the rules, to complying with regulatory requirements, to executing winner affidavits and releases.

For additional information, please contact Mullin Rybicki Klopack, PC at 972-931-0022.

Advertising Links:

FTC Guide Concerning Use of the Word “Free” and Similar Representations

FTC Statement of Policy Regarding Comparative Advertising