It’s not every day that one gets to observe a non-U.S. jurisdiction abandoning frustrating, idiosyncratic requirements on sweepstakes promotions, but – sacré bleu! – we’ve got one to report.
For several years, international marketers have listed France among the jurisdictions included in their international sweepstakes and chance-based promotional games by conforming to certain unique French requirements. Because of a recent development under French law, we have been advised that certain French requirements that are arguably inconsistent with Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (the “Directive”), have been abandoned. In particular, this change will mean the following for international marketers:
- First, promotional sweepstakes offering prizes on the basis of chance do not need to include reimbursement instructions for postage or Internet connection fees. This requirement has been deemed to be inconsistent with the Directive as long as the incentive is not so large in relation to the purchase option so as to “distort” the “economic behavior” of an average consumer.
- Second, the requirement that the official rules be submitted to a huissier prior to advertising the promotion is now a recommended action but is not required. It is still recommended (as with contests of skill) because it helps to have an “official” version of the official rules filed with an impartial third party in case there is any question as to what the rules said at the time the promotion was launched. However, it is no longer required because such a requirement is inconsistent with the Directive.
However, do not go overboard with the champagne. Many unique legal aspects under French law may still apply to a specific promotion. In particular, French data protection laws have actually tightened over the past few years, often making filings with the CNIL necessary. Therefore, it makes abundant sense to continue to carefully vet rules with international promotions counsel before launching a multi-jurisdiction sweepstakes.
(Thanks to Michel Béjot and Caroline Bouvier at Bernard Hertz Béjot in Paris for bringing this news to our attention.)