ADVERTISING AND MARKETING
did not bring in private sector stakeholders for consultation earlier in the process, to obtain a full range of views on whether the concerns identified have a basis in fact, and whether there are alternate ways of addressing those concerns. Early consultation of that kind might have resulted in an enhanced focus on ensuring that the rationale for proposed restrictions on iGaming advertising and marketing were evidence-based. Proposing changes to the Standards on the basis that “there are concerns” that athletes and celebrities having a role in the marketing and advertising of iGaming encourages underage gambling is a “many people are saying” argument. “Many people are saying” can be the starting point for public policy in a liberal democracy, but the next step should be an evidence- based inquiry into whether what they are saying is in fact true. Regulatory bodies in Ontario are explicitly committed to making “evidence-based decisions to regulate in the public interest.” 3 Canadian sources of evidence linking the participation of athletes and celebrities in the advertising and marketing of iGaming to increased underage gambling should be sought to substantiate the perceived risk of such advertising and marketing before a decision is made to impose restrictions. The enactment of the proposed amendments to the Standards should be postponed until the industry has an opportunity to sit down with the government to determine whether an evidence-based link truly exists between athlete and celebrity participation in iGaming advertising and underage gambling in Ontario.
the minds of a youth audience, 4 those features can in fact be used to enhance responsible gaming in Ontario. Such evidence would support allowing celebrities and athletes to be featured in advertising and marketing that promotes responsible gambling messages and education. A similar exception already exists in Ontario, in the context of restrictions imposed on the use of “well-known personalities” in liquor advertising. Those restrictions apply only “if the advertisement contains any direct or indirect endorsement of liquor or the consumption of liquor,” and for greater clarity it is specified that those restrictions “would not apply to public service advertisements provided there is no direct or indirect endorsement of liquor or consumption of liquor by the well- known personality.” 5 As presently drafted, the amendments to the Standards would prevent the promotion of responsible gambling using celebrities and athletes, demonstrating that the amendments have been drafted in an overly-broad manner. This is an unintended consequence that might have been avoided if the industry had been consulted earlier in the process. Regulated iGaming operators in Ontario are responsible actors who want to want to have a constructive relationship with all of the interests that are represented in the Ontario market, including responsible gambling advocates and organizations concerned with underage gambling. Given the non-confrontational relationships that exist in this newly-regulated market, it makes the greatest sense to work with the operators at every possible stage of the public policy process, rather than have them respond ex post facto to decisions that have already been made. This will hopefully be the route followed if further advertising and marketing restrictions are considered in the Ontario iGaming market in the future.
KEVIN J. WEBER Partner, Dickinson Wright (Ontario) For information contact +1 416-367-0899 KWeber@dickinson-wright.com
Moreover, if evidence does demonstrate that the use of celebrities and athletes in iGaming advertisements “increase(s) perceptions of trust and…credibility”, and that commentary-style promotions featuring celebrities and athletes are “more convincing, trustworthy and authentic” in products during Australian sporting matches. BMC Public Health, 16, 967-979, https://bmcpublichealth. biomedcentral.com/articles/10.1186/s12889-016-3610-z; David, J.L., Thomas, S.L., Randle, M., Pitt, H. and Daube, M. (2020). Parent and child perceptions of gambling promotions in Australian sport. Health Promotion International, 35(2), 362-372. 3 AGCO (2023), Business Plan April 1, 2023 to March 31, 2026, Section 5: Strategic Directions and Implementation Plan, https://agco.ca/general/business-plan/section-5-strategic-directions-and-implementation-plan-0/ 4 Pitt et. al., 2016, supra note 2. 5 AGCO, Registrar’s Interim Standards and Requirements for Liquor, Appendix 2 (Registrar’s Guidelines for Adver- tising and Promotion), Guidelines for Liquor Sales Licensees and Manufacturers, section 4(i), https://www.agco.ca/ book/export/html/60121 (retrieved June 25, 2023)
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IMGL MAGAZINE | JULY 2023
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