Sweepstakes, Contests, and Giveaways: Mastering the Legal and Regulatory Landscape

Andrew Lustigman | Olshan Frome Wolosky LLP

Andrew Lustigman is the Chair of Olshan’s Advertising Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group. He represents marketers, advertisers, media, and e commerce companies in connection with the legal aspects of their advertising and promotional marketing business, including clearance of advertising and social media marketing, sweepstakes, games of skill, and other contests, and advises on intellectual property issues, and privacy matters. An equally significant portion of his practice involves investigations and litigation brought by regulatory agencies regarding national advertising campaigns, as well as litigating competitor actions and defending private consumer individual and class action lawsuits.

With over 30 years’ experience in advertising law, Andy regularly appears on television, radio, and in publications such as The Wall Street Journal, National Law Journal, New York Post, Inside Counsel, Bloomberg BNA, Law360, Mobile Marketer, Luxury Daily, and Response discussing important new cases and trends that advertisers and marketers need to know. Andy has been consistently recognized by Chambers USA, Legal 500 U.S. as a “Leading Lawyer” in Advertising and Marketing, selected by his peers for inclusion in The Best Lawyers in America for his distinguished work in Advertising, as well as Super Lawyers– a Thomson Reuters lawyer rating service. Andy graduated, magna cum laude, from American University, Washington College of Law in 1991 and is admitted to the New York and New Jersey State Bars.

Morgan E. Spina | Olshan Frome Wolosky LLP

As an associate at Olshan, Morgan E. Spina participates in various advertising, branding and intellectual property matters. Morgan is a part of Olshan’s Brand Management and Protection practice and participates in all facets of the firm’s brand management, including privacy, advertising, and intellectual property matters. She received her LL.M. from Brooklyn Law School and holds a B.A., with Distinction, in History and English Literature and a LL. B from University of Wollongong in Australia. Morgan assists in advising clients in order to help clients build, maintain, promote, and protect their brands. Morgan’s work includes the structuring of sweepstakes and games of skill, clearance of advertising and marketing materials, privacy, trademark enforcement, all types of intellectual property and advertising agreements, and federal and state government regulatory investigations. Morgan has published articles in connection with advertising, privacy, and intellectual property law.

I. Understanding Legal Frameworks for Promotions | 1:00pm – 1:10pm

• State-specific gambling regulations
• Distinctions between chance-based promotions and skill contests
• Elements of illegal lotteries, including discussion of alternate methods of entry and “equal dignities”

II. Crafting Effective Promotional Rules | 1:10pm – 1:20pm

• Essential components of event promotion rules
• Addressing potential scenarios and contingencies
• Abbreviated rules
• Eligibility requirements, including geographical and age restrictions

III. Registration and Bonding Requirements | 1:20pm – 1:25pm

• Florida, New York, and Rhode Island

IV. Ensuring Compliance with Privacy Regulations | 1:25pm – 1:35pm

• Best practices for collecting participant data
• Youth protection laws and implications

V. Verifying Winner Eligibility | 1:35pm – 1:45pm

• Steps for confirming eligibility
• Importance of winner paperwork (affidavits of eligibility and releases)

VI. Prizes | 1:45pm – 1:50pm

• Considerations for certain prizes, including vehicles, travel, ticketed events, and prizes involving meetings with certain individuals, for example, a meeting with a celebrity

VII. Navigating Tax Obligations for Prizes | 1:50pm – 2:00pm

• Reporting requirements for high-value prizes
• Federal and state tax considerations

Break | 2:00pm – 2:10pm

VIII. Adhering to Social Media Guidelines | 2:10pm – 2:20pm

• Platform-specific rules for promotions
• Clarifying sponsorship and endorsement statements

IX. Compliance With FTC Guidelines | 2:20pm – 2:25pm

• FTC material connection disclosures

X. Intellectual Property Considerations | 2:25pm – 2:30pm

• Issues when asking entrants to submit user generated content as part of their entry in a promotion

XI. Promoting Transparency in Winner Disclosure | 2:30pm – 2:40pm

• Legal requirements for disclosing winners
• Building trust with participants

XII. Exploring Jurisdictional Considerations | 2:40pm – 2:50pm

• Assessing legal compliance for multiple jurisdictions, including foreign jurisdictions
• Exclusions based on sanctions and regulations

XIII. Avoiding Misleading Advertising | 2:50pm – 3:00pm

• Standards for truthful marketing
• FTC guidelines and enforcement

XIV. Highly Regulated Industries | 3:00pm – 3:10pm

• Special considerations for promotions involving certain industries, for example, alcohol