social media guidelines Archives - American Sweepstakes

Best practices for keeping giveaways, sweepstakes & contests legal

I was asked a question yesterday that I get quite often so I thought I would write about it here again. The question does vary a little on how it’s stated. One of our clients asked the following “We are doing a quick giveaway via social media and want to check…are we covered from a legal aspect?” My question back was, do you have official rules? Their answer was no, they did not think they needed them for these small giveaways.

My answer is always yes, you do need Official Rules. Giveaways are just another word for sweepstakes which are a game of chance where the winners are normally randomly chosen. Contests on the other hand are a game of skill and participants usually are invited to submit some content (photo, video, essay, etc.). A panel of judges then chooses the winners based on criteria that are defined in the official rules. So whether you are planning to run a sweepstakes or a contest, or whether the size of the prize, small or large, there are rules and regulations that you must follow in order to be compliant.

Therefore, you need to have a set of Official Rules that outlines the promotion. A promotion that contains all of these three elements: Prize, Chance (random selection) and Consideration (Purchase, Payment or Time) is an “Illegal Lottery”. The Time element is the grayest area. If you are planing to run a promotion that does include Consideration, then you must allow an alternate means of entry (AMOE).

Most social media entry requirements do not usually require consideration. However, writing about a product or a destination or taking a photo or video of the product/destination to enter may be consideration. For example, if the participant can take a photo of themselves with a product in a store, then a purchase would not be required. Or if you’re asking them to take a photo of themselves with a pair of shoes “out and about the town” that would most likely require purchasing the shoes and therefore, Consideration. There is a fine line between the two.

Another example is asking participants to take a photo while taking a bite of a doughnut or sipping a drink. They can’t return the doughnut or the drink then, so wouldn’t that require purchase? You need to ask if the participant can effectively compete without actually making a purchase.

Also a very popular trend on social media is inviting participants to earn extra entries by performing different tasks and challenges on various platforms. Not only do you need to follow the guidelines of each social media platform, you also need to keep in mind the degree of effort that you are asking participants to perform to gain an entry. So how much time is too much and what can you really require? The Supreme Court did rule that watching a 30 minute TV show wasn’t too much time, so that’s a guideline to follow. But keep in mind that while awarding bonus entries for sharing/referring may not likely fall under consideration, it may be against Federal CAN/SPAM regulations.

Another thing to keep in mind is the FTC’s Endorsement and Testimonial Guidelines. They recently published a list of Q&A’s that state that when it comes to sweepstakes and contests, any incentive, no matter how minimal, such as an entry for making a post on social media sites, may be an endorsement. Thus it requires a disclosure. The use of the promotion title alone is not adequate, and they are encouraging including #Contest or #Sweepstakes or #Entry or a similar designation in a hashtag. The recent updated Q&A’s now states that using #sweeps as the hashtag is not enough and instead it should be #sweepstakes.

A rising trend today on social media is running a sweepstakes or contest utilizing only a hashtag with no entry form. Entrants may be invited to post a tweet on Twitter or upload a photo on Twitter or Instagram utilizing a promotional hashtag. Many marketers like these types of promotions since it creates buzz and makes it easy for entrants. However, hashtag entries do not collect data on the entrants since there is no entry form to fill out. Data collection is the number one reason why marketers run sweepstakes and contests. Without collecting data this also can make it more difficult to contact winners. There are however, applications that you can utilize that include both such as what was discussed in this post.

So it all comes back to what your main objectives are for running a promotion. You need to consider what the risks may be and also be realistic in what you are asking participants to do. Most of all, be sure to cover yourself and your company by running a successful and legally compliant promotion that includes a set of Official Rules.

Sweepstakes, Contests, Social Media, Real-Time Marketing, FTC, all focus at BAA’s 37th Marketing Law Conference

The BAA’s 37th Annual Marketing Law Conference just wrapped up on Wednesday, Nov 11th, in Chicago which I was glad to attend. The organization (Brand Activation Association) broke another attendance record with over 760 attendees who ranged from leading regulators, legislators, corporate counsel, marketers and technology innovators who gathered again at the Marriott Hotel on Michigan Ave.

This year’s conference was entitled “Walking the Line: Between Innovation and Regulation”. “The theme of this year’s conference perfectly sums up the challenge of our industry and why our event is more important than ever,” says Ed Kabak, BAA’s Chief Legal Officer. As has been the case in past years, Wednesday’s first session featured Linda Goldstein, a Partner in the Media and Marketing practice at Manatt, Phelps & Phillips LLP in New York. Linda reviewed some of the most newsworthy developments of the year and what they mean for marketing and advertising lawyers and professionals. As usual Linda’s talk was very informative and entertaining as she reviewed again the basics of sweepstakes and skill contests along with social and digital media legal issues from some of the latest promotions. I wrote about Linda’s presentation from last year’s conference here in which she covered some of the same legal matters.

There were two central themes that appeared to be prominent at this year’s conference which Linda first touched upon in her presentation. The first was Real-Time Marketing. More brands are now putting much effort into connecting their product or service with consumers in the moment. To do this successfully, the content must be relevant. We reviewed many examples of those that pulled it off well and those that didn’t. Some brands have started using the new live streaming apps, Periscope and Meerkat, that are perfect ways to connect experiential marketing with consumers. However, broadcasting live video to the world has its inherent risks, along with possible copyright and trademark infringements

The other central theme was focused on the FTC’s Endorsement &Testimonial Guidelines which are not new, but it appears the FTC is now clearly monitoring what is happening online and on social media. Sweepstakes and contests are a material connection to the brand, and therefore need to be disclosed. They are recommending brands direct the participants to us the #sweepstakes, #contest, #entry hashtags along with their promotional hashtag in any social media posts that gain the consumer an entry. Another type of material connection that should be disclosed is an employer/employee relationship to the brand. The FTC charged Sony and their agency, Deutsch LA, with deceptive behavior on Twitter when it found that employees were using the same hashtag that the consumer was using, #GameChanger, when posting about their Playstation Vita handheld device.

Real-time marketing is one of the areas that the FTC is highly looking at. Linda ended her presentation by stating that trust is key and that brands that walk the talk will be rewarded. “These real time platforms will take us to new territories; we the attorneys’ must protect our clients as we walk the line between innovation and regulation.”

Wednesday morning we were treated to another highly entertaining presentation from Ron Urbach, Chairman/Davis & Gilbert LLP, who also demonstrated how important it is for those in our industry to keep current. Ron used the term “Disruption” to describe how today’s technology allows new brands and services to thrive. He pointed out Airbnb, which has changed the way we travel, and Kickstarter, the way we invest. So to help get his point across Ron created a video of a group of fictitious millennials who were using social media and technology to launch new products, such as DrinkAgain Pay Water Fountains and Rag Exchange – The Fashion Lease Experience. Ron was their lawyer, or as one of the female characters called him, their “interpreter”.

This video demonstrated several areas in which the group crossed the line and Ron had to reign them back in to stay compliant. We were reminded that if you link your product to a celebrity, don’t forget about the FTC endorsements guidelines. If you’re going to do live streaming, then you better establish guidelines, train the person(s) doing it and then monitor it carefully. Brands must also develop a social media policy, train employees, monitor and then enforce their policy. And, don’t forget to get consumer’s consent before re-posting any photos or videos of theirs.

Ron summed up his presentation by stating that today we need “Live Lawyering”, along with training and best practices. Pay attention to “Disclosure in a Disruptive World – and provide the right info at the right time in the right way.”

Hopefully many of us will be headed back to next year’s 38th Annual Marketing Law Conference. We were treated with some beautiful, unseasonably warm weather this year. Can the BAA conference team please schedule that for us again?

Here’s a summary of the various social media promotion guidelines

Last week at the 7th annual BlogPaws Conference in Nashville I presented a session titled Key Legal Developments in Sweepstakes, Contests and Social Media. So I thought I’d share here a recap of the section that covers the broad array of the guidelines for promotions from the various social media platforms.

Facebook
Back on August 7, 2014, Facebook announced on it’s Developer’s Page that it no longer would allow Like Gating. They gave developers and page administers a 3 month window to make any adjustments to their apps which went into effect in November. Here’s what they stated:

“You must not incentivize people to use social plugins or to like a Page. This includes offering rewards, or gating apps or app content based on whether or not a person has liked a Page. It remains acceptable to incentivize people to login to your app, checkin at a place or enter a promotion on your app’s Page. To ensure quality connections and help businesses reach the people who matter to them, we want people to like Pages because they want to connect and hear from the business, not because of artificial incentives. We believe this update will benefit people and advertisers alike.”

So you certainly can still ask fans to like your page, “Don’t forget to Like our page”. You just can’t make it mandatory in order to enter a sweepstakes or contest.

Then about a month after this announcement Facebook then changed their Promotional Guidelines again and stated that you no longer have to use an 3rd-party app and can run Sweepstakes and Contest promotions right on your Page’s Timeline by simply asking fans to Comment on or Like a post as a way to enter. We’ve seen some promotions run this way since the change, but the majority still appear to be using an app. The issue with running a promotion right on your page is that you are not collecting data on the participants and therefore it’s hard to contact the winner(s). So it all depends on what your objectives are in choosing which method to follow.

Twitter
Twitter’s Guidelines are pretty simple and overall they want to avoid “spammy” posts filling up their platform. When running contests or sweepstakes they ask businesses to ensure that participants follow their overall guidelines which include:

– Discourage posting the same Tweet repeatedly. This means do not create a sweepstakes where the most retweets win.
– Discourage the creation of multiple accounts in order to gain extra entries.
– A good practice is to always ask users to include an @ reply to ensure you can view all entries.
– Encourage the use of posts that are relevant to the contest. Don’t use a hashtag that is not related to the topic.

Instagram
Instagram’s Promotional Guidelines are somewhat similar to the other social media platforms which they encourage having a set of official rules that are legally compliant with the applicable rules and regulations for running a sweepstakes or contest. They also want the rules to state that the promotion is in no way sponsored, endorsed or administered by, or associated with, Instagram (as you should do with any social media platform that you are including as a method of entry.

The only additional guideline is do not inaccurately tag content or encourage users to inaccurately tag content (ex: don’t encourage people to tag themselves in photos if they aren’t in the photo).

Pinterest
Pinterest came out with some updates to their Brand Guidelines to include best practices for sweepstakes and contests. Here are some of the dont’s they suggest :

– Don’t suggest that Pinterest sponsors or endorses you or your promotion.
– Don’t require people to Pin from a selection – let them pin what they like,
– Don’t make people pin or repin your contest rules.
– Don’t run a sweepstakes where each pin, repin, board, like or follow represents an entry.
– Don’t encourage spammy behavior, such as asking participants to comment.
– Don’t ask people to vote with pins, repins, boards, or likes.
– Don’t overdo it: contests can get old fast.
– Don’t require a minimum number of pins. One is plenty.

Google + – Does still not allow promotions on their platform. You are only able to promote it on this platform.

FTC – Federal Trade Commission
Besides the social media platform guidelines, you should also be aware of updates on the FTC endorsement and testimonial policy. They recently published a list of Q&A’s that you may want to take a look at. When it comes to sweepstakes and contests they state that any incentive, no matter how minimal such as an entry into a contest or sweepstakes for making a post on social media sites, may be an endorsement. Thus it requires a disclosure. The use of the promotion title alone is not adequate, and they are encouraging including #Contest or #Sweepstakes or #Entry or similar designation in a hashtag. The recent updated Q&A’s say that using #sweeps is not enough and instead it should be the whole word in this case.

That’s all the latest that I’m aware of. They change on a regular basis, so it’s tough to stay updated, but hopefully this summary will be of help to all. If you have any further updates you are aware of please share them here.