Rubbernecking

Most promotions these days are well-designed and suffer, at worst, mundane glitches. But every once in a while there’s a doozy — a promotion that goes so wrong it makes marketers (and their lawyers) wince.

This isn’t about the kind of intentional illegal activity that McDonald’s Corp. and Simon Marketing suffered last year. This is about errors in judgment, untied loose ends, or lack of foresight.

This post-mortem of recent doozies may help eliminate future mishaps.

Last year, Warner Bros. conducted the Toon Marooned Adventure Sweepstakes on its Looney Tunes Web site with a new minivan as grand prize. The winner, notified through an e-mail from a Warner Bros. exec that he had won, was later deemed ineligible because he was 11 years old. (Official rules limited participation to persons 18 or older, a common age limit for sweepstakes.) Here’s the problem: The Looney Tunes site appears to be directed at children. Plus, the child claims he was not required to read the rules in order to play, and, in fact, didn’t even know where to find them.

A lawsuit was filed against Warner Bros. on the child’s behalf, and results are pending. Here’s the lesson:

• Age limits should be clearly disclosed on entry pages, not just in fine-print rules — especially for sites whose audience includes kids. Rules should appear on, or link directly to, entry pages.

• Persons under 13 years should be blocked from entry, per federal law. A simple screening mechanism may have prevented this entire mess.

• Warner Bros. should not have said “you won” until after the winner signed an affidavit verifying his age and other qualifications. Standard language for notifying consumers is: “You have been selected as a potential winner, subject to verification. We are now in the process of verifying that you are eligible to win a prize. To aid us in this process, you must complete and sign the attached affidavit of eligibility.”

Hooter’s Restaurants played an April Fool’s Day prank on its waitresses last year. The restaurants in one Florida region ran a sales contest to boost beer sales: Waitresses who sold the most beer were entered in a drawing for the grand prize, described as “a new Toyota.”

The winner was blindfolded and led to her restaurant’s parking lot to receive her prize. When the blindfold was lifted, she was presented with her new toy Yoda doll.

She filed suit against Hooter’s owner Gulf Coast Wings, alleging breach of contract and fraudulent misrepresentation. The company settled with the waitress for an unspecified amount that we understand was enough to buy any Toyota automobile she chooses.

This harkens back to PepsiCo’s 1995 gaffe, when a consumer tried to redeem points for the Harrier jet jokingly featured in a TV spot. Pepsi refused; he sued. Pepsi eventually won, but the p.r. and legal fees were brutal. Lots to learn here:

• Promotional offers lead to binding contracts, the terms of which may not be modified once the offer is made and accepted.

• Offers are serious business to contestants — especially when they require additional work, as Hooter’s employee contest did. Don’t assume your audience — or a judge — will laugh at a “joke.”

Sometimes unforeseeable disaster strikes. In August, a minor-league baseball team in Florida hosted a between-innings contest that sent 250 women running from the outfield to find a diamond in a small box, buried in the infield.

To everyone’s horror, one young woman collapsed and died on the infield. No common-sense precaution could have prevented this tragedy. But the lesson here is that if there’s any element of physical endangerment — no matter how remote — participants should be warned of potential hazards and required to sign an explicit release assuming such risks.

Peter O’Reilly is a partner in Hall Dickler Kent Goldstein & Wood’s new Chicago office, and co-chair of the Promotion Marketing Association’s Promotion Law conference in Chicago next month. Consult him at [email protected].