Promotional giveaways are often launched with marketing goals in mind, but lottery laws do not evaluate intent. Regulators instead apply a strict legal test rooted in gambling law to determine whether a promotion is lawful or prohibited. Many businesses believe they are running sweepstakes when, legally, they may be operating an illegal lottery.
Understanding the illegal lottery elements (prize, chance, and consideration) is essential for any brand offering promotions to the public. These elements form the legal foundation used by regulators, courts, and enforcement agencies to assess promotional activity, regardless of platform or industry.
This article explains the legal framework behind those elements so readers can evaluate their own promotions using the same analysis applied by regulators.
An illegal lottery exists when all three of the following elements are present:
This definition is consistent across U.S. jurisdictions and is grounded in long-standing gambling statutes. If any one of these elements is removed, the promotion no longer qualifies as a lottery under the law.
Federal agencies, including the United States Postal Service, rely on this framework when analyzing promotions and defining an illegal lottery definition for enforcement and consumer protection purposes.
A prize is anything of value awarded to a participant. Courts interpret value broadly, meaning prizes are not limited to cash.
Examples of legally recognized prizes include:
If a participant stands to receive something of value, the prize element is satisfied. Most promotional campaigns meet this element without dispute.
Standing alone, a prize does not create illegality. Risk arises only when prize distribution is combined with chance and consideration.
Chance exists when winners are selected randomly or when outcomes are not predominantly determined by skill. Random drawings, automated selection tools, and undisclosed algorithms typically meet the chance requirement.
Calling a promotion a “contest” does not remove chance. If skill is not clearly defined, measurable, and determinative, regulators may still classify the promotion as chance-based.
Common chance-based mechanics include:
If chance plays a meaningful role in determining winners, this element is satisfied.
Consideration is the most misunderstood of the illegal lottery elements and the most common source of legal exposure.
In gambling law, consideration means participants must give something of value in exchange for a chance to win. Consideration is not limited to money.
Legally recognized forms of consideration may include:
Digital promotions frequently trigger consideration through required purchases, gated subscriptions, or mandatory actions that drive revenue or measurable business value.
When prize, chance, and consideration all exist together, the promotion meets the legal definition of an illegal lottery.
Under U.S. law, private lotteries are generally prohibited unless expressly authorized by the state. To offer lawful promotions, brands rely on two alternative legal structures:
Sweepstakes law developed specifically to allow chance-based promotions without violating gambling statutes. This is why sweepstakes must remove consideration entirely.
Brands frequently work with a sweepstakes attorney to ensure promotions are structured to remove consideration while preserving equal odds of winning.
The phrase “no purchase necessary” is a legal disclosure, not a marketing slogan. For it to be legally valid, the promotion must offer a free alternative method of entry that is:
The Federal Trade Commission evaluates whether a free alternative method of entry is legitimate when assessing consumer deception and unfair practices. A free entry option that is hidden, burdensome, or unequal may still be treated as consideration.
Many illegal lotteries arise from oversight rather than intent. Common mistakes include:
Brands operating online promotions should also ensure alignment with broader social media compliance obligations.
Illegal lottery laws are actively enforced through:
Penalties may include fines, restitution, injunctions, and reputational damage, particularly for brands operating at scale.
Legal review is strongly recommended when promotions involve:
Businesses operating promotional campaigns without legal review often underestimate how quickly a sweepstakes can cross into prohibited lottery territory. Working with our social media legal team helps ensure promotions comply with gambling, advertising, and consumer protection laws.
If you are planning a promotion or concerned that your current campaign may meet the definition of an illegal lottery, legal review before launch is critical.
Contact our team here to protect your brand and your promotion.
An illegal lottery is a specific type of prohibited gambling defined by the presence of prize, chance, and consideration. While all lotteries are gambling, not all gambling activities are lotteries. The distinction determines whether a promotion is lawful.
A business may offer paid entries only if a legitimate free alternative method of entry is also available and provides equal odds of winning. Without that free option, charging for entry generally creates illegal lottery risk.
Yes. Online and social media promotions are subject to the same gambling law framework as offline promotions. Digital execution does not change the legal analysis and often increases enforcement scrutiny.
Author
Ethan Wall, Esq.
Founding Attorney, The Social Media Law Firm l Nationally Recognized Social Media Lawyer
Legal Disclaimer: This content is for informational purposes only and does not constitute legal advice.
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