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Clearing Cobwebs Around Sweepstakes

February 12, 1987|DON G. CAMPBELL | Times Staff Writer

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.

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