US FEDERAL REGULATION
Betting on Our Future Act - Overview In early February of 2023, Rep. Paul Tonko, D-N.Y., introduced the “Betting on Our Future Act” which, if passed, would ban all advertising of sportsbooks on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission (the “FCC”). 11 In practice, this would likely mean sports betting operators would be prevented from promoting their products through cable, television, radio, satellite and wire, but would still leave open advertising through print media such as newspapers or magazines. While a ban of this nature may appear novel, there are existing laws that mirror the Betting on Our Future Act’s framework and sentiment. Specifically, there is a line of Supreme Court precedent showing increased judicial tolerance for what some call “sin advertising.” Sin advertising includes advertisements of, for example, tobacco, marijuana, liquor and, of course, gambling. “Sin Advertisement” Legislation and Case Law I Cigarette Advertisements The Betting on Our Future Act is modeled after the Federal Cigarette Labeling and Advertising Act (“Cigarette Advertising Act”), which prohibits any advertising of cigarettes and little cigars on radio, television, or other media regulated by the FCC. 12 Of interest, after its passage in 1969 and implementation in 1971, the Cigarette Advertising Act faced little pushback. Even then, the opposition largely came from the broadcast companies, not cigarette manufacturers. 13 Supporters of the Betting on Our Future Act point to the Cigarette Advertising Act as precedent, asserting that it is a noncontroversial
increased visibility and promotion of gambling helplines, legalized sports betting appears to pose a problem with respect to gambling addiction. Sportsbook advertisements play a direct role in both the economic benefits to states and the increase in problem gambling. As the sports betting industry is still in its infancy in the United States, state and federal governments are grappling with ways to regulate advertising and balance the competing interests. At present, some states require that advertisements contain a problem gambling assistance message. 6 Others forbid the promotion of sportsbooks on college campuses. 7 In Maine, where sports betting is legal but has not yet launched, there are proposed rules prohibiting the use of professional athletes and celebrities in advertisements and banning promotions and/or bonuses on television all together. 8 Ohio was the frontrunner in enacting and enforcing advertising regulations. In January of 2023, the Ohio Casino Control Commission (“OCCC”) implemented rules banning the use of “risk-free bets” and “free bet” in offers that require bettors to use their own money before receiving bonus credits. 9 The OCCC has since issued numerous notices of violation and fined three major sportsbooks in amounts ranging from $150,000 to $350,000. 10 While there is no uniformity in the state laws, there appears to be a consensus that certain changes are needed with respect to advertising. Although legalized sports betting is only a recent development in the United States, regulators can draw on past experiences and glean insights from related “sin advertising” regulations, the Supreme Court’s reaction to such “sin advertising,” international laws, and public reaction in general.
com/2023/04/07/sports-betting-boom-linked-rising-gambling-addiction-anxiety-suicide-1789055.html#:~:text=According%20to%20one%20 study%20in,probability%20control%20and%20interpretive%20control.%22. 6 E.g., N.Y. COMP. CODES R. & REGS. Tit. 9 § 5325.6. 7 E.g., ARIZ. ADMIN. CODE § 19-4-110. 8 See Proposed Rules to Gambling Control Unit, adding chs. 50 – 66 (proposed Jan. 11, 2023), 16-633-64 ME. CODE R., §§ 2(D), 4. 9 See OHIO ADMIN. CODE 3775-16-09(C). 10 Danny Cross, Ohio Fines BetMGM $150,000 For Sports Betting Advertising Regulations, PLAY OHIO (Mar. 15, 2023), https://www.playohio. com/news/betmgm-sports-betting-advertising-fine-ohio/. 11 See The Betting on Our Future Act, H.R. 967, 118th Cong. (2023). https://www.congress.gov/118/bills/hr967/BILLS-118hr967ih.xml 12 Federal Cigarette Labeling & Advertising Act, 15 U.S.C. §§ 1331 et seq. 13 See Capitol Broad. Co. v. Mitchell, 333. F. Supp. 582, 585-86 (D.C. Cir. 1971), aff’d mem. sub nom. Capitol Broad. v. Kleindienst, 405 U.S. 1000 (1972).
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IMGL MAGAZINE | APRIL 2023
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