Colorado COVID-19 Drawings' Legality and Eligibility Mess

There's both good news and bad news about Colorado Comeback Cash, five weekly drawings beginning Friday, June 4, that will each award $1 million to an individual who's been vaccinated for COVID-19.

The good news is that an expert confirms that the contests don't violate Colorado's extremely complicated sweepstakes law — a subject of debate since Governor Jared Polis's exuberant May 25 announcement about the giveaways, which are intended to increase the rate of vaccinations among state residents. The bad news is that the names of many people who've been inoculated, including yours truly, aren't showing up on the state's public immunization record portal, raising doubts about whether they'll be automatically qualified for the drawings, as Polis has pledged.

Let's tackle these issues one at a time.

The state's sweepstakes rules, as found in the consumer-and-commercial affairs section of the Colorado Revised Statutes, stress that no contest or sweepstakes can require that participants "pay the sponsor money or any other consideration as a condition of awarding the person a prize, or as a condition of allowing the person to receive, use, compete for, or obtain a prize or information about a prize."

Entry in Colorado Comeback Cash doesn't require a payment, but would vaccination qualify as a "consideration"? We put that question to attorney Mark Grueskin of Recht Kornfeld P.C., who has a well-deserved reputation as one of the state's top legal minds on gaming and the gaming industry. And in his view, the drawings pass muster.

"They are not a sweepstakes, and they're not a sweepstakes for several reasons," Grueskin explains. "One is the no-consideration issue, and another is that this is a product that really has no fair market value at this point, not only because it's being given away, but also because the supply exceeds demand. So it's pretty hard to argue that somebody would have to part with valuable considerations in order to get it."

Another point in Colorado Comeback Cash's favor is "the status of the sponsor," Grueskin continues. "The sponsor is somebody who basically puts a sweepstakes together and leaves the impression or actually requires that there's some sort of payment that's required. But there's no such suggestion here. So I don't see that the sweepstakes statute is at all implicated."

This argument is seconded by Victoria Graham, a spokesperson for Polis's office. "We spoke to other states to learn from their experience and worked closely with the attorney general’s office as we designed this public health promotional drawing to ensure it complies with Colorado law,'' she notes.

More ticklish is the matter of eligibility. At his May 25 press conference, Polis said that everyone who gets jabbed by June 1 will have a chance for the June 4 prize, with those immunized afterward qualifying for future drawings; there will be four more, with the final set for July 7. Moreover, the governor stressed that everyone previously vaccinated is already in the running; they'll be assigned a randomly generated number, and if it's picked, the jackpot will be theirs.

Problem is, the state website where vaccinated Coloradans can check that they're listed is far from complete. This morning, May 28, I entered my name and got the following message: "We were unable to find a record matching the search criteria supplied. An exact match is required for all of the data provided, so please make sure the data you entered is typed correctly and is a likely match for the data in our system. For example, try using the patient's legal name."

The gaps in the system don't seem focused on any one vaccine or type of supplier. I was vaccinated with Pfizer medication at Children's Hospital, while my wife, who isn't listed on the site, either, got Moderna shots at a King Soopers. Moreover, there's confusion aplenty over who's responsible for entering the information. One King Soopers representative told my wife that she needed to fill out additional paperwork to be entered, even though the process is supposed to be automatic. But when she went to a local store, the people at the pharmacy had no idea what she was talking about.

The situation is already producing uncomfortable headlines, like this CBS4 piece about issues involving veterans, since the VA's system does not automatically record vaccinations with the state. That's not the kind of publicity Colorado Comeback Cash is supposed to be generating.

Is your name on the list? We've reached out to the Colorado Department of Public Health and Environment on the records and eligibility snafus and will update this post when we receive a response.