If the last year and a half has taught promotion law attorneys anything, it’s that there really are world events that can affect our promotions on a very large scale. COVID 19, had a big impact on many promotions and on many levels all at once. It has been unprecedented and unpredictable. And our promotions are still dealing with the impact.
Throughout the COVID pandemic, our clients have been reaching out with a wide range of concerns and questions:
- ‘What do we do about our live promotion?’
- ‘What about our promotion that is about to launch?’
- ‘Our products are unavailable to consumers – how will they be able to enter?’
- ‘What about production and delivery delays?’
- ‘What if our prize event is canceled?’
- ‘Will the winner be able to travel?’
As experts in promotion law, our internal team had to figure out many solutions: how to get the mail, how to ship prizes, to general, ongoing issues like how to run business as usual. Months of planning, drafting, reviewing, and advertising suddenly needed urgent changes and pivots… and those challenges continue today. April 2020 created an influx of legal urgency and problem solving.
Our COVID-19 promotion protection: The Official Rules.
Our official rules and terms and conditions have always been drafted to protect our clients and to protect PrizeLogic. It is common practice to rely on our rules for any entry details, fulfillment requirements, or customer support concerns. However, COVID-19 made us rely on our rules and terms in a whole new way. In fact, our rules were ready for 2020 before we all were. The lengthy language in our rules and terms (which most consumers never read), became more important and more relied upon than ever before. The PrizeLogic legal team had to adjust quickly and effectively, field questions from our clients, and revise rules for most live promotions.
Our rules always include the line “If, for any reason, the Sweepstakes is not capable of running as planned, Sponsor reserves the right, at its sole and absolute discretion, to cancel, terminate, modify or suspend the Sweepstakes and/or proceed with the Sweepstakes, including the selection of a winner in a manner it deems fair and reasonable, including the selection of a winner from among eligible entries received prior to such cancellation, termination, modification or suspension.” Typically changing live rules is a big “no-no”, however, this language allowed us to change to live rules and our clients were protected.
For many promotions, we were forced to change some methods of entry. Some promotions had an on-site or in-person entry flow which became impossible. Our rules had to be tweaked and entry mechanisms had to be quickly built to enable our promotions to continue. We also had to replace our standard mail-in alternate method of entry as COVID-19 caused significant mail delays, and even prohibited our fulfillment team from physically getting the mail at one point. Our development team worked with legal to create a new digital method of entry. We needed to still allow for equal dignity without compromising the safety of our employees or fairness of our promotion.
Other challenges around notifying winners and awarding prizing arose. We suddenly had to substitute prizes, while assuring clients that these adjustments were protected by the rules. One of the most important lines in our rules quickly became: “If a prize should become unavailable for any reason, Sponsor reserves the right to substitute the prize for one of equal or greater value”. That language allowed our clients to continue their promotions and award their prizes without legal consequences (or any B & R fines from Florida). Our clients were protected as was PrizeLogic. Our teams also had to get creative by coming up with substitute prizing – gift cards, cash, finding digital or virtual options for meet-and-greets or concerts, and working with prizing vendors to provide alternative options that were in-line with the client’s brand.
With many companies and venues now implementing COVID-19 restrictions, mask mandates, and even vaccine requirements, our rules and terms now require language to account for those restrictions. What if a venue implements a vaccine requirement after the promotion has launched? How do we accommodate that winner? We are constantly preparing for and adapting to the changing requirements for sporting event, concerts, restaurant visits, travel, etc. Having protective “catch-all” language in our rules and terms has proven vital to covering these changing requirements. Our clients also need to be prepared to accommodate winners if any of these requirements or restrictions affect prize fulfillment or prize usage. As COVID-19 restrictions and requirements continue to change, so will our conversations with our clients, as will prize fulfillment and our rules and terms.
There have been many delays in prizing as well, with hold ups in the production of certain items, in shipping, and in the ability to physically get our hands on items. Which is, understandably, frustrating to a winner. Our rules include the line “The Sweepstakes Entities shall not be held responsible for any delays in awarding a prize for any reason”. Our rules and terms typically provide a timeline for when prizes will be fulfilled. With the mass setbacks across the prize procurement and awarding process, this line has allowed some protection for these delays.
The craziness that has ensued since COVID-19 has created a fresh perspective for PrizeLogic legal. Our official rules and terms and conditions continue to play an important part in our promotions. However, we now draft and assess our rules with fresh lenses, some new insight, and more protective language.
Michelle Komorn