Exclusive Interview with Don Bourgeois, Counsel at Fogler Rubinoff: Examining Marketing and Advertising in Ontario's iGaming Industry
Don Bourgeois, Counsel at Fogler Rubinoff, sheds light on the examination of marketing and advertising practices in Ontario's iGaming industry
The Alcohol and Gaming Commission of Ontario (AGCO) is seeking to prohibit sports gambling companies in Ontario from using athletes, celebrities, and other figures that may appeal to minors in their internet gambling advertisements. The proposed rules would also ban the use of cartoon figures, social media influencers, and symbols or role models that are likely to attract minors. These changes would be implemented as an amendment to the province's internet gambling advertising standards.
To gain more insights into the marketing and advertising practices in the Ontario iGaming industry, Gambling.Re spoke with Don Bourgeois, Counsel at Fogler Rubinoff and a respected legal expert in the field.
Bourgeois noted that marketing and advertising are important to B2C iGaming operators - both in terms of obtaining sustainable players in a responsible manner and to comply with several regulatory structures that govern advertising in Ontario. These regulatory structures include both federal and provincial requirements. The provincial regulatory requirements include the Registrar's Standards for iGaming (AGCO) and the policies of iGaming Ontario. The AGCO is the regulator for iGaming and land-based gaming in Ontario and iGaming Ontario is the other Ontario Government corporation that enters into commercial arrangements with AGCO-licensed operators.
Bourgeois further highlighted that there are also a number of private sector associations who provide guidance or services to the operators to ensure that there is a high level of compliance - including the Canadian Marketing Association (CMA), ThinkTV (for broadcast media), and the Canadian Gaming Association (CGA). These associations provide guidance to members so that all members understand the "rules" and the policy reasons behind those rules.
In discussing the issue of marketing and advertising, Bourgeois emphasized that the recent initiative by the AGCO is focused on a particular issue that has arisen not only in Ontario but in other jurisdictions in which iGaming occurs. There is a strong public policy objective to ensure that marketing and advertising are not aimed at youth and do not induce youth to gamble.
Bourgeois highlighted the support for this objective, stating that this public policy objective is one that is supported by operators and their marketing and advertising suppliers - and by the associations such as the CMA, CGA and ThinkTV - for two reasons. First, it is the "right thing to do"; operators in the 2020s are materially more aware of RG and related issues and recognize that these obligations are part of doing business. Second, it is good business; measures to ensure that marketing and advertising achieve public policy objectives help to ensure that there is a fair competitive process and that operators have sustainable customers who are interested in an entertainment product that is provided in a responsible manner.
Bourgeois further stated that there is no fundamental difference between iGaming operators and the AGCO on the overall outcome. The AGCO has identified in its draft Standard (Restricting Athlete and Celebrity Participation in Advertising for Internet Gaming, April 13, 2023) some additional measures that it has released for consultation purposes - a prohibition on using (i) athletes (active or retired) and (ii) social media influencers, celebrities or entertainers "who would reasonably be expected to appeal to minors". The consultation period has closed and the AGCO is reviewing the comments prior to making a decision. It is understood that the AGCO received a significant number of submissions from various associations, operators and suppliers, and individuals in support of the proposed changes or pointing out significant issues.
Bourgeois acknowledged the concerns raised during the consultation, stating that the issues include concerns about the constitutionality of the prohibition under the Canadian Charter of Rights and Freedoms and the lack of research to support a number of the statements made by the AGCO. There is also a lack of clarity around what AGCO would accept in determining what would be reasonably expected to appeal to minors, the policy rationale for excluding retired athletes, and the lack of action to enforce the law against "black market operators" who continue to market and advertise in Ontario without complying with the existing Registrar's Standards.
In addition, Bourgeois highlighted that there is inconsistency in the AGCO's approach, which is limited to iGaming but would not apply to land-based operators, and a lack of clarity around who would be considered to be an "athlete." Furthermore, there is a lack of complaints.
The ongoing discussions and consultations between the AGCO, industry stakeholders, and legal experts reflect the commitment to ensuring responsible marketing and advertising practices within Ontario's iGaming industry. While operators and associations support the public policy objective of protecting youth from inappropriate marketing, there are still important issues to address regarding the proposed measures. Achieving a fair competitive process and attracting sustainable customers remain shared goals, and finding the right balance between responsible advertising and the operators' business interests is crucial.