CANADIAN CONTEST RULES/PRECEDENTS
Do you need contest rules/precedents
for a Canadian contest?
We offer many types of Canadian contest/sweepstakes law precedents and forms (i.e., Canadian contest/sweepstakes law precedents to run common types of contests in Canada). These include precedents for random draw contests (i.e., where winners are chosen by random draw), skill contests (e.g., essay, photo or other types of contests where entrants submit content that is judged to enter the contest or for additional entries), trip contests and more. Also available are individual Canadian contest/sweepstakes precedents, including short rules (“mini-rules”), long rules, winner releases and a Canadian contest law checklist. For more information or to order, see: Canadian Contest Law Forms/Precedents. If you would like to discuss legal advice in relation to your contest or other promotion, contact us: Contact.
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I am a competition and advertising lawyer. For about the past ten years (probably more) I have been working on promotional contests for a wide range of clients – from large consumer products firms, to start-ups and individuals that want to promote their brands in a perennially successful way: contests. They are extremely popular with both brands and consumers.
While contests can vary considerably depending on the type of promotion, where the contest will be run and how it will be promoted, in Canada there are a number of important preliminary considerations to think about.
In general, these typically involve questions relating to the type of promotion, where it will be run (e.g., Canada-wide, Canada excluding Quebec, North America, etc.) and how it will be promoted (e.g., through traditional media, social media, using e-mail etc.). Other key considerations include complying with basic competition, privacy and criminal law requirements.
In this regard, over the past number of years, the following have emerged as important questions for brands, agencies and their counsel to ask before launching a contest:
1. Have the basic Competition Act requirements been met? In general, the Competition Act requires that certain up-front disclosure be made in point-of-purchase marketing materials before a consumer has been inconvenienced or purchased a product. These basic disclosure obligations are mandatory and carry potential civil penalties if not met.
2. Where will the contest be run? In general, most of Canada has one set of requirements and Quebec has additional rules. Can I help with Canada-wide contests? – yes. I work with Quebec, U.S. and international counsel to help clients with Canada-wide, North American and global contests. Despite the perception that some sponsors have, Quebec and the U.S. can often be added to a promotion efficiently to add considerable marketing reach.
3. Will the contest be run in the United States? If so, U.S. sweepstakes law tends to be state based. As such, experienced U.S. contest/sweepstakes counsel is needed to efficiently advise on uniform requirements to be added to Canadian rules. Can I help with U.S. or North American contests/sweepstakes? – yes. I work on many cross-border contests and promotions and with both efficient and experienced U.S. and Quebec contest lawyers.
4. Will the contest involve social media marketing? If so, most social media platforms (e.g., Facebook, Twitter, etc.) require additional language to be added to contest rules and some also have additional requirements (e.g., to comply with local contest laws). As such, important threshold questions for social-based contests are where will the contest be run and what are each platform’s promotions rules?
5. Will the contest involve e-mail or electronic marketing? If so, Canada’s federal anti-spam legislation (CASL) should be complied with. CASL is often relevant when running contests and promotions in Canada, including if electronic distribution lists will be used to market the contest/promotion, the contest/promotion will include the collection of e-mails for marketing unrelated to administration of the promotion, if participants’ e-mail addresses will be shared with third parties (e.g., related entities or affiliate marketers) or participants are asked or incentivized (e.g., with bonus contest entries) to “share” the contest/promotion with friends or family. Given the potentially severe penalties for violating CASL, which include administrative penalties of up to $10 million, it is important to ensure that CASL is complied with for electronic marketing related to contests or other promotions open to Canadians. For more information about contests and CASL, see: Contests and CASL and CASL Compliance Errors. For CASL checklists and precedents that we offer for sale to comply with CASL, see: CASL Checklists and Precedents.
6. Will the contest involve a purchase requirement or other potential “consideration” (i.e., entrants providing something of value)? If so, promoters in Canada need to understand how to reduce risk under the federal Criminal Code, which prohibits illegal lotteries. Common strategies to reduce Criminal Code risk involve a bona fide no purchase required option and skill-testing question (though there can be other important Criminal Code related points and nuances depending on the type of promotion and what is required for entrants to enter and participate).
7. Can a purchase be required to enter and participate? In some cases, arguably yes. In general, the Criminal Code prohibits: (i) games of chance (or mixed chance and skill), (ii) where participants pay money (or something of value), (iii) for a chance to win a prize. There are strategies to avoid the Criminal Code in certain cases. Promoters need to be cautious, however, where a contest requires a purchase or something else of value as a condition of entry.
8. Will the contest sponsor be partnering with a third party for the promotion? If so, there may be advisable steps to minimize the risk of liability arising from the co-sponsor’s or partner’s conduct (e.g., entering into an agreement with the third party setting out the parties’ respective obligations, indemnities in the event something goes wrong and covenants to avoid certain types of marketing or other activities not contemplated by the contest rules – e.g., e-mail marketing where compliance steps have not been put into place to comply with CASL). In short, sponsors partnering with third parties need to pause and consider the potential risks of co-sponsoring a promotion and measures to mitigate that risk and protect them from liability.
9. Will any third party intellectual property (e.g., trade-marks) be used? If so, do you have appropriate consents in place and have you complied, for example, with any required disclaimers or other requirements to reproduce third party names, marks or imagery?
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SERVICES AND CONTACT
I am a Toronto competition/antitrust lawyer and advertising/marketing lawyer who helps clients in Toronto, Canada and the US practically navigate Canada’s advertising and marketing laws and offers Canadian advertising/marketing law services in relation to print, online, new media, social media and e-mail marketing.
My Canadian advertising/marketing law services include advice in relation to: anti-spam legislation (CASL); Competition Bureau complaints; the general misleading advertising provisions of the federal Competition Act; Internet, new media and social media advertising and marketing; promotional contests (sweepstakes); and sales and promotions. I also provide advice relating to specific types of advertising issues, including performance claims, testimonials, disclaimers, drip pricing, astroturfing and native advertising.
For more information about my services, see: services
To contact me about a potential legal matter, see: contact
For more regulatory law updates follow me on Twitter: @CanadaAttorney
