Promotional Campaigns in the Romanian legal landscape (II)

by Paul Banzea, Associate at Mihai & Co. Business Lawyers

“Luck is a matter of preparation meeting opportunity”
(Lucius Annaeus Seneca)

Raffle and voucher campaigns

The raffle based campaigns. Another great example of successful marketing projects organised by retail or service companies themselves is that of a raffle based campaign where, after buying a certain product, the client will be able to send via text message/online form/e-mail a specific code or number identifiable through the receipt or invoice. Of course, the prize in such scenarios could be decisive and is generally comprised of goods or services related to the organising companies main activity. In other words, it is more likely to win a car in a campaign organized by a gas company than one organized by your favourite supermarket chain, which will be more likely to lure you with generous shopping vouchers. One has to keep a close eye on the applicable local legal provisions as a raffle based campaign presents a higher risk of tampering with the final result. There are multiple protective mechanisms that could be stipulated in the rules and regulations of the campaign.

Voucher campaigns. The voucher campaign also brings specific advantages, especially for companies that have and market a number of varied goods and/or services. A voucher received upon the acquisition of a certain good may be used later on at a different associated store in order to buy yet another good or service. However, a company should be aware of it’s clients’ expectations in order to maximize the results of the campaign, seeing that campaigns are getting more and more diverse and the expectations of the crowds keep getting higher (https://www.marketingweek.com/2015/04/16/using-vouchers-and-incentives-to-add-brand-value/). The voucher may correspond to a certain number of products or to a specific amount in money that could be subtracted at the acquisition of other goods/services. The organiser of the campaign has the liberty to choose the rights incorporated by the voucher. In order to do so the following questions have to be answered:

Is the voucher exchangeable?
Can a customer use more than one voucher at a time?
What is the expiration date for the voucher?
Can the client receive change after using the voucher for a lesser amount?
Is the voucher counterfeit proof?
How are the vouchers distributed?

All the questions above can be answered and incorporated in the rules and regulations of the campaign so that the campaign will benefit both the organisers and the client’s needs.

Promotional campaigns in Romania – possibilities and limitations

The Romanian legal landscape. According to the law any company that is legally registered with the Romanian authorities and performs commercial activities can organise campaigns in order to promote and to award as prizes certain types of services and products as long as it is acting with respect to the principles of free competition, of protecting the life, health, safety and security interest of consumers and, of course, all applicable environmental regulations.

At all time the organiser of the campaign has to abide by the applicable law. However, for certain more modern campaign mechanisms there is a legislative gap, leaving the participants without any legal protection regarding their rights. The regulated campaigns have to take place in strict compliance with the provisions of the Government Ordinance no. 99/2000 regarding the comercialization of products and services on the market. Such campaigns are those that rely on prizes being awarded by engaging in activites specific to raffles/lotteries. One specific and mandatory current requirement according to the law is for any lottery/raffle type of campaign to have a notarized internal regulation, in order to prevent any possible abuse.

However, there are many cases in which the prize awarding mechanism is changed by adopting rules specific to contests, where the winners are decided besed ond their abilities, knowledge, insight or performance. Thus, the campaign is no longer under the provisions of the Government Ordinance no. 99/2000 – for example, a campaign in which participants are required to post photos with a certain product or brand and the „most beautiful picture”(either at the organizer’s discretion or as it was voted by the community) is awarded the prize, or a campaign in which the prize is awarded to the first person to call a certain number and provide the right answer to a question. In such cases the law doesn’t even require a regulation for the campaign, let alone a notarized regulation. Even so, it is highly recommendable that organizers conclude a regulation as it is the contractual basis on which the prizes can be awarded to winners and generally include rules of the campagin, conditions for participating and disclaimers regarding the organizer’s liability.

In certain cases, where the campaign could be classified as a gambling activity according to the legal standards, the campaign organisers will also have to comply with the provisons of Government Ordinance no. 77/2009 regarding the organising and exploitation of gambling activities and will even require for companies looking to engage in publicity and marketing campaigns to request and receive the approval of the National Bureau of Gambling under a possible penalty of between RON 20.000 and 40.000 (art. 3 and 20 of Government Ordinance no. 77/2009).

Additionally, due to the fact that the vast majority of the campaigns involve data processing, the organiser must take into consideration the detailed provisions of the EU General Data Protection Regulation and make sure that the campaign regulation includes a chapter in this regard – especially containing provisions referring to consent for data processing, the purpose for the data processing and the subject’s rights.

In part three of this article you will find specific types of clauses to be taken into consideration when establishing the rules and regulation of a promotinal campaign project.