Under state laws throughout the United States, gambling generally consists of three elements:
- Consideration – typically, this means a participant must pay or purchase to play. However, being required to attend an event or otherwise taking actions that a participant would not otherwise take has often met the expansive definition of “anything of value” used when determining if consideration is present.
- Chance – the outcome depends on luck and/or a winner is chosen at random.
- Prize – a participant provides consideration and accepts the element of chance because they hope to win something of value.
When all three elements are present, an activity or promotion is considered gambling.
Can a participant win a prize without providing any “consideration”? Sweepstakes offer participants the opportunity to win prizes, such as a free flight to a tropical destination or a new car, without making a purchase or otherwise providing any “consideration” by providing an alternative (or “free”) method of entry (an “AMOE”). A valid AMOE must be free, offer equal odds of winning, and be easily accessible and trackable. Participants typically only need to submit their personal information to enter. This model provides sweepstakes sponsors with several strategic advantages: it promotes their products; generates a database of interested consumers; and allows them to avoid constituting gambling. An AMOE that requires such information to be provided by postcard has long been understood to take away the “consideration” element and, therefore, allow sponsors to avoid implicating state gambling laws throughout the United States. As technology has evolved, however, sponsors have begun to consider alternatives to “archaic” postcard AMOEs.
As fans of board games and cheeseburgers know, McDonald’s again operated its Monopoly sweepstakes in 2025. Essentially, McDonald’s customers could claim rewards on the McDonald’s app after purchasing a Big Mac, among other menu items. The Big Mac would come with a physical game piece containing a game code, which could be entered into the McDonald’s app and reveal food prizes, cash prizes and even a car. But only allowing this method of entry for the promotion, by itself, would mean McDonald’s promotion was actually an illegal gambling scheme—and McDonald’s did not allow a postcard AMOE.
Companies now conduct sweepstakes online using two primary AMOEs. The first is the online form submission, where a participant simply provides personal information (typically their name, address, email, and age) and is subsequently entered into the sweepstakes. The second is social media engagement, where a company asks participants to leave a comment on a post to enter. Social media entries generate attention and visibility for the sponsor, while online forms allow sponsors to collect valuable customer data. Consider the McDonald’s Monopoly sweepstakes in 2025. A participant could enter the Monopoly promotion for free by providing their email address and requesting an “AMOE Request Form.” After filling out the AMOE Request Form, a participant would receive two game codes that could be used to win prizes on the McDonald’s app. This online AMOE was required to make the Monopoly a sweepstakes and protected the Big Mac-making sponsor from violating gambling laws throughout the United States.
As noted above, an AMOE must also be “accessible.” Must an online form be available to individuals who do not use the internet? Most likely not. As long as the AMOE is easily accessible online, it will comply with the requirements that AMOEs have “equal dignity” with other methods of entry. Equal dignity hinges on the AMOE being as simple as other paid or “consideration” methods of entry. The AMOE should not be hidden behind numerous webpages to the point where it is hard to discover and takes significantly more effort than other methods of entry. If the AMOE process discourages entry, it may lead governmental authorities to conclude that the AMOE does not constitute an entry without “consideration” and, therefore, lead to the ultimate conclusion that the promotion is actually an illegal gambling scheme. In practice, accessibility requires striking a careful balance and ensuring the AMOE process is simple and effortless.
One challenge with online AMOEs is geographic access. A sponsor may comply with laws of the United States, but the internet is global. If someone views an online entry form or social media post from Canada, for example, the sponsor should consider whether they should be prohibited from participating. Failure to restrict participation could render the sweepstakes illegal in those jurisdictions. Accordingly, the terms and conditions of any sweepstakes should clearly specify the residency requirements for participants to ensure compliance with applicable gambling laws. When an AMOE is not truly available to everyone, proper tracking may also help filter out ineligible participants.
Another significant problem with online AMOEs is the risk of bot manipulation. A bot is a technological tool capable of performing automated tasks, such as submitting hundreds of entries into a single sweepstakes on behalf of one user. Bots can distort odds in favor of certain participants and undermine the integrity of the AMOE system. To address this risk, online AMOEs may utilize CAPTCHA (Completely Automated Public Turing test to tell Computers and Humans Apart) or similar verification tools to prevent automated entries and ensure the sweepstakes remains fair to all participants (including those submitting AMOEs). Additionally, CAPTCHA can analyze how quickly an online form was submitted. If too many forms are submitted from one location rapidly, CAPTCHA may disqualify those entries because a bot likely was utilized to submit the AMOEs. These security measures may allow sponsors to feel comfortable using online AMOEs. After all, online AMOEs offer substantial advantages over postcards: they are easier for participants to use, faster for sponsors to process, less expensive to administer, and more scalable. To further address this issue, we recommend that sponsors put an overall cap on the number of entries that may be submitted by one individual (regardless of method of entry) to avoid a sweepstakes that is overrun by AMOEs.
Overall, online AMOEs allow companies to ensure compliance with gambling laws just as effectively as postcards with the added benefit of appealing to consumer behavior in 2026. But a sweepstakes conducted without eliminating consideration or that otherwise permits only defective AMOEs could run afoul of gambling laws with potentially significant consequences. Sponsors must be careful.
Special thanks to summer associate Charlie Scheinfeld, who contributed significantly to this post.
