Clearing Cobwebs Around Sweepstakes

Question: Last summer when one of the publishing houses was having a giveaway sweepstakes, you had a column quoting a spokesman for (I believe) Reader’s Digest about how, yes, it was true, you didn’t have to buy anything in order to win a prize. And then the spokesman gave details about how the drawing is done.

Either you didn’t do your homework, or the persons supplying you with the information were also taken in by the same lies.

Here it is (attached) in black and white--or, rather, yellow and blue and framed in red, an appropriate color. This isn’t the first time it has happened to me and, I’m sure, millions of others by this one company alone. The notice says that I’ll be dropped from their list if I don’t buy something.--G.S.

Answer: That’s what it apparently says, all right, under the bold heading: “Order Today! Don’t Be Dropped From Our List!” In part, the text says the following: “In the months ahead, many will be dropped from our mailing list. The reason is as simple as it is saddening. Because of ever-rising costs, we can afford to mail our offerings only to groups of people who actually buy magazines. Others will have to be excluded; as much as we regret it.” And so on until it concludes with the line: “So, don’t be left out; stay on our list. Send in your order today.”

Your particular mailing was from American Family Publishers, a subsidiary of Time-Life Inc., and yes, I received a similarly worded notice in connection with the company’s current sweepstakes. AFP isn’t alone, however. You’ll also find a like notice tucked away in a corner of one of Publishers’ Clearing House’s multipaged, confusing mailings.

Your reading of the notice (and mine too) is that this warning is a sort of gun at your head. Buy something, or you won’t win anything.

Rarefied Atmosphere

Here we get into the rarefied atmosphere of legal distinctions between a “sweepstakes” (that’s what these magazine subscription drives are all about) and a “lottery.”

On the surface, it’s all simple enough: A lottery requires you to buy something in order to win and has all sorts of legal prohibitions surrounding it--like mailing notices or winnings across state lines. Obviously, a giveaway that would be classified as a lottery couldn’t be conducted through the mails and couldn’t cover all 50 states as the magazine drives do. To escape this onus, the publishers conducting these sweepstakes absolutely must bend over backward to make sure that buying something is not a condition of either entering or winning a prize.

And, on this score, watchdog agencies, such as the Postal Service and the Federal Trade Commission, give a clean bill of health to all of the sweepstakes currently swirling around us with their punch-out coupons, their glue-on “bonus” points and all of the other gimmickry.

So, what about this warning notice that both of us received? Isn’t it, subtly, at least, a threat that we’d darn well better buy something? And doesn’t that make it a lottery, rather than a sweepstakes?

It depends on who answers the question. Herschel Elkins of the California Attorney General’s office here feels that a very fine and shaky wire is being walked by American Family Publishers and the other publishers as well.

“It could very well be a lottery,” Elkins feels, “because the real test is: What is the impression given to the consumer by the notice? And the impression is that you’ll get a sweepstakes chance in the future only if you buy something in this one.”

But in New York, David Carlin, an attorney with Loeb & Loeb & Hess, who describes himself as “the designated spokesman for American Family Publishers,” scoffs at this interpretation. “There’s absolutely no discrimination in the awarding of prizes between those who have, and those who haven’t, bought anything.”

If you got the mailing, in other words, you can enter the sweepstakes without buying a diddly thing, and you’ll have the same chance of winning something that the entrant does who signs up for every publication on the list. But what about the “gun at the head” suggestion in the warning about being dropped?

Refreshingly Candid

Carlin is refreshingly candid on the subject: “Let me explain to you how we feel about it, so you’ll understand. Like any other business, we can’t afford to keep mailing to people who don’t order--it’s tremendously expensive, and we’d be out of business in short order if we kept mailing to people who don’t order. Every direct-mail company in the business works the same way and most of them won’t tell you about being dropped--they just do it. We felt that it was only fair to tell the customer--warning him--that he may be dropped. We don’t say that he will be, simply that we can’t guarantee that he’ll stay on the list.”

Carlin also adds that there is no mention of “sweepstakes” on the warning that you and I received, nor does it say, definitely--as Carlin emphasizes--that we will be dropped.

“If you haven’t ordered for a year or two--depending on policy--you’re dropped,” he adds, “but we use all sorts of overlapping lists, and it’s entirely possible that you can remain on the list for a long time without ordering anything.”

A correspondent at American Family Publisher’s public telephone number in Chicago told The Times: “I think they clean the list out about every four years but, if somebody gets dropped off it, all they have to do is write us and we’ll put them back on.”

But isn’t the warning an effort to winnow the mailing list down, exclusively, to people who, in the past, have ordered something?

“Certainly,” Carlin admits. “We’d be fools if we didn’t try to narrow it down, and, ultimately, that’s what we’d like to have: a list of people who have bought something. We feel that we’re doing as much for the consumer (by sending the warning) as we are for ourselves.”

And American Family Publishers’ attorney also concedes the legal delicacy of the warning notice. “We’ve devoted a great deal of attention to that piece of paper for the very reason you’ve identified. We didn’t do it willy-nilly. We read everything carefully to make sure that it complies, because we appreciate the potential (problem) in it.”

It’s a stance that doesn’t mollify Senior Assistant Atty. Gen. Elkins in the least. “I can’t buy either of his arguments: that the warning doesn’t refer to ‘sweepstakes,’ and that it doesn’t say, specifically, that you will be dropped if you don’t buy something.

“This gamesmanship of taking a look at what each word precisely says,” Elkins adds, “isn’t required by either California or federal law. In the last 50 years in California, there hasn’t been a single defense that was successful using the argument: ‘That’s not precisely what we said in our literature.’ ”

Is any action against the practice possible?

“I don’t know,” Elkins concedes. “It could very well make it a lottery, instead of a sweepstake, but whether it would meet the standards that a law enforcement agency might utilize in bringing action is questionable. That’s particularly true now in California, where the existence of a legal lottery makes the distinctions-- between a sweepstakes and a lottery--even a little more vague than they were before.”

But, Elkins adds: “I think the notice might very well be the basis for, at least, sending a letter to American Family Publishers, suggesting that it’s probably a violation of our lottery statutes.”

One thing remains quite clear, however: If you’ve been mailed a sweepstakes entry by anyone , you can rest assured that you can enter it without buying a thing, and you’ll get a fair shake in the ultimate drawing.

Although next year, sure enough, you may be dead in the water.