The US federal government is considering legislation to ban all broadcast advertising of sportsbooks in the country. Congressman Paul D. Tonko (D-NY) introduced the bill on Feb. 9, calling it the Betting on Our Future Act (BOFA). The prohibition on advertising would be similar to that on tobacco ads, covering all electronic media under the jurisdiction of the Federal Communications Commission (FCC).
Tonko timed the bill’s introduction to coincide with the approaching Super Bowl. It is, of course, the biggest single day for sports betting in the US each year. Eric Ramsey – resident industry analyst for Bonus’s parent company Catena Media – projects $1.1 billion in bets will be placed with legal US sportsbooks this year. Soon after will come NCAA basketball’s March Madness, consistently the biggest month of the year.
In a press release, Tonko said:
This Sunday, millions of families across the U.S. will tune in to watch the Super Bowl[…] Tens of millions will be bombarded by ad after ad from DraftKings, FanDuel and others promising so called ‘risk free’ or ‘no sweat’ bets in their ruthless pursuit to get new customers hooked on their products[…] These ads pose a particularly dangerous threat to adolescents and young adults unaware of the risks involved in gambling, and to individuals prone to addiction.
The inescapable nature of televised gambling ads has made them a hot-button topic in recent months. News outlets like the New York Times have picked up on viewers’ frustration and begun to fan the flames, slamming the industry and state lawmakers alike. The backlash against nonstop advertising may even be one of the reasons that more recent gambling expansion efforts have been facing headwinds.
Gambling Industry Likely to Resist a Heavy-Handed Approach
BOFA would make it illegal to advertise a sportsbook on “any medium of electronic communication subject to the jurisdiction of the [FCC].”
Tonko’s fact sheet regarding the bill asserts this would include television, radio, and the internet. The first two are indisputable, but the extent to which the FCC has jurisdiction over internet content is a complex legal issue. Most social media and other major tech companies have their own policies around gambling ads in any case.
That said, BOFA is far from a done deal. Although gambling issues can sometimes bring together the parties, it won’t help the bill’s chances that it has a Democrat sponsor in a Republican-controlled congress.
It is, however, illustrative of the federal government’s heavy-handed approach to gambling. New Jersey had to sue the federal government in a case that went to the Supreme Court to secure for itself and other states the right to set their own laws around sports betting. Now some, like New York and Ohio, have begun more targeted efforts to rein in the volume of gambling ads and the marketing strategies they employ.
The industry has generally shown itself to be responsive to these more nuanced approaches. For instance, Ohio’s regulations against misleading terms like “risk-free” have led to many operators walking away from such language in their national campaigns.
However, industry pushback against a blanket ban like the one Tonko proposes is likely to be strong. One important argument for regulated markets is that they reduce illegal offshore gambling. For that to work, the regulated sites need to outcompete their black market peers. One they can do so is through legal marketing. Therefore, industry representatives are likely to point out that a total ban on ads would be counterproductive.
Federal Interference is Nothing New
We shouldn’t expect a soft touch from the federal government, though. Aside from PASPA – the law that banned sports betting until 2018 – its most significant involvement in gambling over the past decade was the Department of Justice’s attempt to reinterpret the Wire Act. Had it succeeded, it would have thrown a wrench into legal online casino gaming and poker by prohibiting things like multi-state poker rooms and streaming live dealer games from out-of-state studios.
Fortunately, the judicial system intervened with the DOJ’s Wire Act overreach as it did with PASPA. However, if BOFA were to pass, it’s less likely that the courts would strike it down. Although commercial speech qualifies for First Amendment protections, it’s well-established that there are limits. As Tonko alludes, television and radio cigarette ads have been illegal since 1972.
Ohio’s policies and the advertising bill under consideration in New York fall under the same category. However, they’re less like the federal ban on tobacco ads and more like the restrictions we see on those for alcohol. You’ll still see beer ads during the Super Bowl, but there are a lot of rules about what the companies can and can’t say.
Finally, it’s worth noting that although the federal government has done what it can to limit the availability of legal gambling in the country, it has done very little to address gambling addiction directly. In a piece on the topic for The Conversation this week, researcher James P. Whelan points out that the National Institute of Health had a $570 million budget to study alcohol addiction in 2022, yet nothing at all for gambling addiction.