The Vaccine Lottery: From Legalities to Logistics

Could the Australian government pull off a nation-wide vaccine lottery? We ask Plexus marketing compliance lawyer Emma Tiberi.

In an effort to increase COVID-19 vaccination numbers across Australia, Stephen Duckett from The Grattan Institute recently proposed the implementation of a vaccine lottery. But can and will this vaccine lottery actually get off the ground?

Dubbed the ‘Vaxlotto’, Duckett proposed that all vaccinated Australians be eligible to enter a random prize draw for the chance to win one of ten $1 million prizes every week for eight weeks (with those who have had their second vaccination eligible for two entries into each draw).

He proposed that the promotion commence on Melbourne Cup Day (2nd November 2021) and run through to just before Christmas, awarding a massive $80 million in prize money altogether.

The proposed lottery would come under the regulation of the various State and Territory gaming departments and presumably be classed as a trade promotion lottery. As the name would suggest, trade promotion lotteries are required to genuinely promote the goods or services of the organisation running the promotion (the ‘Promoter’).

While Scott Morrison has indicated that he is considering a range of incentives to boost vaccine numbers (including the vaccine lottery), the question will be whether the government can structure this trade promotion lottery to satisfy the requirements of the State and Territory gaming departments. Specifically, will need to mount an argument that this trade promotion is intended to promote its goods and services. This may be difficult to establish.

Quite apart from any applicable gaming legislation, there is also the issue of offering incentives in conjunction with medicines and medical procedures. Under the ASMI Code of Practice, healthcare product providers are specifically prohibited from conducting a trade promotion lottery which requires entrants to purchase a non-prescription healthcare product. Furthermore, the direct advertisement of prescription medicines to consumers is prohibited under the Therapeutic Goods Advertising Code.

In 2019, however, the Therapeutic Goods Administration issued a permission that allowed the publication of advertising material relating to vaccines (including COVID-19 vaccines) to general consumers provided this material was produced by a Federal or State Government department.

In 2021, this permission was further extended to allow health professionals, participating vaccination sites, corporate entities, media outlets and other organisations to develop and publish their own content regarding COVID-19 vaccines.

Importantly, the 2021 permission also stated that any party can offer ‘valuable consideration’ to people who have been fully vaccinated under the Government's national COVID-19 vaccination program. While there was no mention of entries to a trade promotion as a permitted ‘incentive’, examples of permitted rewards included cash and alcohol (in reasonable quantities), so presumably entries into a trade promotion lottery would also be permissible.

Quite apart from the legality of running the vaccine lottery, there are some logistical issues to consider:

How would the entrant pool be determined?

Would all eligible Australians automatically be entered into the draw or would entrants need to actively opt in? Would the promotion be open to individuals under the age of 18, should vaccination open up to minors in the coming weeks?

Who would be listed as ‘the Promoter’ (given that an ABN is required to run a trade promotion lottery in most States and Territories)?

Who would conduct the prize draws, and would this organisation have access to each entrant’s personal information?

Who would be responsible for sorting out which entrants were given one entry into the draw and which entrants were given two entries into the draw (and updating this information on a weekly basis)?

And last but not least, who would foot the bill for the $80 million in prizes?

While the vaccine lottery may sound like an appealing incentive, the government may have a few hurdles to jump before it makes too much noise about the $80 million in potential prize money up for grabs.

We’ll be sure to keep you up to date as the situation evolves.