United States: Your Chance to Win: Promotions Law in the Digital Age

Last Updated: July 30 2019

Regulatory Framework

Sweepstakes and contests are governed by a variety of state and federal laws, such as lottery, prize notification and registration laws, as well as laws regulating how sweepstakes and contests are advertised.

The Basics: Sweepstakes vs. Contests

  • A sweepstakes is a game where the outcome is determined by chance and the participants cannot be required to expend money or provide any other consideration.
  • A contest is a game where the outcome is determined by skill and the most skilled participant will be the winner. Definition varies by state.

Why does it matter?

  • Need to avoid creating a lottery: prize, consideration and chance
  • Only the state can run a lottery
  • Sweepstakes omit element of consideration or provide AMOE
  • Contests omit element of chance

Sweepstakes – Eliminating Consideration

  • Consideration can be purchase or payment; substantial effort; or something of value
  • What is not consideration (typically): mailing in an entry form; completing a simple survey; referring a limited number of friends
  • What is or could be: text messaging charges; providing extensive personal information; providing extensive UGC

Contests – Eliminating Chance

  • Skill must determine the winner
  • Tie-breaker should not be determined by chance
  • Must establish criteria for determining the winner
  • Judges must be qualified

Sweepstakes and Contests Using Social Media

Sweeps: Do Social Media Entry Requirements = Consideration?

  • Must have an account on Twitter/Facebook
  • Follow the sponsor on Twitter/”Like” sponsor on Facebook
  • Re-tweet to enter
  • Subscribe to a sponsor’s blog
  • Blog about the sweepstakes or contest
  • Post the sweepstakes or contest to your own blog
  • Join sponsor’s community
  • Answer/comment on an issue in sponsor’s community
  • Write a product review
  • Forward to a friend on Facebook

A cautionary note on reviews…

Contests: Public Voting

  • Does public voting introduce an element of chance in a contest?
  • Concerns with public voting:
    • Absence of clearly defined judging criteria
    • If you have criteria, will public follow them?
    • Are the public qualified to judge?
    • Is the process fair?

Ways to Mitigate Risk When Using Public Voting

  • Post clear voting terms.
  • Limit voting to one vote per person to avoid the contest becoming a popularity contest.
  • Only implement public voting in cases where the public can legitimately judge entries (e.g., cutest pet, best photo). Maybe combine with judging.
  • Have a mechanism in place on the backend to screen for individuals using bots or other automated means to vote.

Other Challenges for Social Media Platforms

  • You must comply with a social media platform’s own guidelines
  • Limited character count/space to comply with disclosure requirements
  • Difficult to ensure that the promotion reaches its intended audience since it is instantly accessible by the world
  • UGC Risks

Facebook Guidelines: Entry on Facebook

  • Must be administered within Apps on Facebook.com, either on a Canvas Page or an app on a Page Tab. (i.e., cannot require a user update her status or post on your wall to be entered)
  • You can require entrants to Like your page to enter, but you can’t enter people automatically by Liking your page
  • You can’t notify winners through Facebook
  • Facebook must be released in the rules
  • Must include a clear disclosure stating that:
    • the promotion is no way sponsored, endorsed or administered by Facebook.
    • any information provided by entrant is being provided to Sponsor and not to Facebook and if entrant has any questions she should contact Sponsor and not Facebook

YouTube Contest Platform Terms and Conditions

  • Cannot require a purchase to enter
  • Must be only open to 18+
  • Ownership of videos must be retained by the entrants
  • Must include a privacy notice in the rules
  • Must post a notice stating that YouTube is not a sponsor of the Contest and has no responsibility or liability regarding the conduct or administration of the Contest

Disclosure Requirements in Social Media

  • Most critical disclosures:
    • No purchase necessary
    • Age of Eligibility (e.g., 18 or older)
    • Link to the rules
  • A user should not be required to click on a link to see the disclosures
  • Facebook: The disclosures do not necessarily need to appear in the top line of status update, but can be included in the body copy of the status.
  • Twitter:
      NoPurNec 18+ Rules@[tinyURL]
    • If entry deadline is not in body of Tweet, you should add it
    • Disclosures can appear in a Tweet immediately following the call-to-action Tweet (i.e., 1 of 2, 2 of 2)

Contests & User-Generated Content (UGC)

  • Copyright Infringement
  • Right of Publicity / Privacy
  • Defamation
  • False Advertising / Unfair competition
  • Trademark Infringement
  • Other Tort Liability
  • Idea Misappropriation
  • SAG / AFTRA issues

Are you responsible when Contest entrants infringe upon rights?

Some Tips

  • Be smart about the subject matter of submissions you invite
    • BAD IDEA: “Create a five minute video in which you recreate a scene from your favorite Hollywood movie and upload it on our website.”
  • Implement screening
  • Have strong rules and follow them!
This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Contact the Author?
Click here to email the Author
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Other United States Advice Centres
Useful Resources
Under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based.
The SBA's resources on Truth-in-Advertising Laws.
Do you know the buzz words that may be a tip-off to a rip-off?
Upcoming Events
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions