Sports Betting and Gambling Advertising Bans In America? Not Likely

Last week, the UNLV International Gaming Institute issued a report titled The Marketing Moment: Sports, Wagering and Advertising in the United States, and it advocated for sports betting firms to get a grip on how they advertise their product before the government steps in and tells them how to do so.

And before you say “it can’t happen here,” know that it’s happened there: In Italy, all gambling advertisements have been banned since 2019. In England, there is no sports betting advertising allowed during games. And as this is being typed, the incumbent mayor of London, Sadiq Khan, said he will ban gambling advertising in London’s subway system should he be re-elected May 6. Additionally, there is a big push in Ireland to ban gambling ads, and talk of implementing some type of ban in Australia is making headlines.

Of course, in these countries, sports betting and online gambling are much more mature markets than in post-PASPA America, and, much like the UNLV paper posits, it would behoove companies doing business in America to smarten up with their advertising pushes so that hardline government intervention doesn’t, in fact, happen here.

Having said that … at least one politician wants it to happen here. 

U.S. Senate bill 3322 — which was reintroduced in February by Sen. Tom Cotton, a Republican from Arkansas — is called the “Prevention of Deceptive or Child-Targeted Advertising in Violation of the Unlawful Internet Gambling Enforcement Act” and would require the Federal Trade Commission to, in part, “submit a report to Congress regarding deceptive advertising related to unlawful internet gambling.”

On the grandstand

What I think it is — and I don’t think it’s politically left or right — is pandering political behavior,” said Dr. Aaron Moore, a professor at Rider University in Lawrence, N.J., whose research concentrates on the intersection of media, sports, and gambling. “It’s a very easy stance to take, where you can go against a vice, so to speak, and say ‘I’m against it.’ I think any politician, in any country, regardless of political affiliation, is going to want to be part of the conversation. And it’s very easy to say ‘I’m against it, and I want to limit advertising, because I’m for the people.’”

But Moore doesn’t think any of these legislators in any country — and especially in America, where online gaming is a nascent industry — are going to go full throttle at the issue now or anytime soon.

“In reality, I don’t think they’ll go down that road because they don’t want to antagonize the media outlets,” Moore said. “If these politicians were really true in what they’re saying, and really wanted to stop gaming advertising, they would end up limiting the amount of advertising radio stations, television networks, newspapers, magazines, receive. And these media outlets are relied upon by politicians for good publicity. They’re not going to want to antagonize the media outlets and take away a growth market where a lot of advertising is happening.”

Hello, First Amendment

Beyond the grandstanding — especially in America — there’s the actual law regarding advertising as it pertains to free speech. And on that score, it would certainly appear the gaming companies are on rock solid ground.

Regulation of gambling advertising in the U.S. is much more difficult for the government than in other countries like the UK or Australia,” said Larry Walters, a Florida-based lawyer who specializes in internet, gaming, and First Amendment law. “The First Amendment protects commercial speech in the U.S. The government is required to demonstrate a substantial interest justifying the regulation, and prove that the law is narrowly tailored to directly advance that interest. The Supreme Court has also held that truthful advertising of legal gambling activity is protected by the First Amendment even if the advertising is received in a location where the gambling activity is illegal.”

In short: Gambling companies in America have James Madison on their side.

“As more states begin to legalize online casino gambling and sports betting, we will see more advertising of that activity and potentially some efforts to impose restrictions,” Walters said. “I expect lawmakers will focus on preventing advertising to minors and warnings regarding compulsive gambling behavior. While most governmental regulations will be upheld if there is any rational basis for the law, local, state, or federal agencies will have a more challenging burden when attempting to justify gambling advertising.

“Similarly, efforts to restrict tobacco and liquor ads has been met with skepticism by the courts, and some of those laws have been struck down on First Amendment grounds. So long as the gambling activity is legal and the ads are not misleading or deceptive, it will be difficult for the government to impose meaningful restrictions on the ads in the U.S.”

But that doesn’t mean the government won’t take measures to keep the online gambling sites in line. In states from Illinois to newly legal New York, restrictions on who operators can target in advertising and, in some cases, how they can advertise, are written into the law or regulations.

For instance, some states, like New Jersey, give regulators wide berth — if they choose to use it — in what type of advertising is allowed.

“We have the regulatory authority to limit it,” said former New Jersey state Sen. Ray Lesniak, who is basically Patient Zero when it comes to the fight to overturn PASPA. “They (the Division of Gaming Enforcement) would be able to limit it to reasonable levels, to stop being enticement-driven to people to gamble beyond their means. They have a lot of discretion in that regard.”

And while Lesniak praised the overall job that New Jersey DGE Director David Rebuck has done, he does think Rebuck should take a heavier hand in keeping tabs on the advertising.

“I’ve been concerned about that, and I’ve actually made complaints to the DGE about some of the TV advertisements that I believe have been too enticing,” Lesniak said. “I saw one that had someone putting a new pool in their backyard from winning on slots or something. Stuff like that. I think some of these advertisements have gone a little too far in promoting the big dream, the big win. We have the regulatory power, we just have to use it.”

Pearls, clutched

Moore, for one, doesn’t think New Jersey — or any state or federal agency — is going to do much of anything when it comes to gambling advertising. While political grandstanding and not wanting to aggravate the media is reason enough for Moore to think nothing will happen, he also cites some more market-driven forces at play.

“This is a new, emerging market, and there’s more outlets involved every day,” he said. “I’d say it’s exactly like the 1990s when every other ad was for a dot com. It’s probably like it was in the 1930s and 1940s when there were more auto manufacturers fighting for the consumer’s attention. The way to get through is advertising, but once things start consolidating, you’re not going to see as much fighting for the little segments of the market. Another correlation would be from a decade ago, when there was a ton of advertising for Sirius and XM satellite radio. Once they merged, you stopped seeing the inundation of advertising.”

Additionally, Moore cites another “vice” that is going to supersede gambling for the pearl clutchers of America.

“It’s only a matter of time before we start having more marijuana companies start advertising, and when that happens, all of sudden gambling is no longer on the vice radar, and all the focus will be on marijuana,” he said. “And it will be like, ‘Oh gosh, these marijuana companies, they keep advertising and advertising.’ Gambling will get trumped by marijuana, and I don’t think it’s that long from now.”

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