BETTING ON OVERSIGHT: REPURPOSING REGULATIONS FOR

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

387

BETTING ON OVERSIGHT: REPURPOSING

REGULATIONS FOR CIGARETTE AND

TOBACCO ADVERTISING TO ADDRESS

SPORTS GAMBLING, AMERICA’S FASTEST

GROWING VICE INDUSTRY

COLE EISENSHTADT*

INTRODUCTION ....................................................................................... 388

I.THE MIRRORED HISTORIES OF TOBACCO AND SPORTS GAMBLING

MARKETING .................................................................................. 393

A. Daily Fantasy Ads to Murphy v. NCAA ......................................... 395

1. How Daily Fantasy Sports Became a Widely Advertised Form of

Gambling ............................................................................. 395

2. Murphy and Post-PASPA Advertising Trends ............................ 398

B. Big Tobacco’s Mission: Priming New Generations of Smokers ............ 403

C. The Movement to Minimize Cigarette Marketing .............................. 404

II.THE INTERAGENCY TASK FORCE MODEL .......................................... 408

III.RECOMMENDATIONS FOR THE INTERAGENCY TASK FORCE ON

SPORTS GAMBLING MARKETING: AGENCY ANALYSIS ................ 410

A. The Federal Trade Commission—Protecting Consumers from a Novel,

Predatory Industry ....................................................................... 411

B. The Food and Drug Administration—The Correct Agency for a Public

Health Issue? ............................................................................. 417

C. The Federal Communications Commission—Ending the TV Onslaught ... 418

CONCLUSION ........................................................................................... 419

* J.D. Candidate, 2023, American University Washington College of Law; B.A. Social

Relations and Policy, 2019, Michigan State University, James Madison College. I would like

to express my immense gratitude to Cannon Jurrens and CJ Blaney for their invaluable

assistance throughout the Comment writing process, and to Professor Wermiel for helping

frame my initial thoughts into a legal argument. And to my family and friends, thank you for

your love and support, and for keeping me sane throughout law school.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

388 ADMINISTRATIVE LAW REVIEW [74:2

INTRODUCTION

From dice games played on the sidewalk to the World Series of Poker,

gambling has played an ever-present and controversial role in American

culture since before the nation’s founding.

In fact, lotteries helped fund the

Revolutionary War.

Over time, American society’s views on gambling have

changed depending on the moral, economic, and jurisprudential paradigms

of the day. For most of modern history, the federal government has

maintained some regulations on sports gambling, such as licensing

requirements or prohibitions on certain types of games.

Several law school

textbooks, especially those dealing with federal criminal law, highlight cases

involving illegal sports gambling.

Famous television series portray sports

betting as a feature of organized crime, reflecting much of the country’s

impression of the business.

For most of the last thirty years, sports gambling

prohibitionists ran the table when Congress passed the Professional and

Amateur Sports Protection Act of 1992 (PASPA), effectively outlawing sports

gambling outside of a handful of grandfathered states.

However, in Murphy v. National College Athletic Ass’n,

the U.S. Supreme Court

determined that PASPA’s main provisions violated the anticommandeering

principle embedded in the Tenth Amendment, and thus, the Court struck down

the law in its entirety.

This case represents a significant victory for federalism

as states seek to reap the benefits of liberalizing sports gambling.

On the other

1. See generally A History of American Gaming Laws, HG.ORG LEGAL RES., https://www.hg.

org/legal-articles/a-history-of-american-gaming-laws-31222 (last visited May 10, 2022)

(describing the history of gambling in the United States).

2. Becky Little, Lottery Tickets Helped Fund America’s 13 Colonies, HIST. (Oct. 11, 2019),

https://www.history.com/news/13-colonies-funding-lottery.

3. See, e.g., Federal Wire Act, 18 U.S.C. § 1084 (1964) (prohibiting certain types of gambling

businesses that operate using wire communications); Unlawful Internet Gambling Enforcement

Act, 31 U.S.C. § 5363 (2006) (prohibiting gambling businesses from “knowingly accept[ing]

[payments] in connection with the participation of another in unlawful Internet gambling”).

4. See generally Katz v. United States, QUIMBEE, https://www.quimbee.com/cases/katz-v-

united-states (last visited May 10, 2022) (citing thirty contemporary casebooks that use Katz as an

example for six different law school subjects).

5. See, e.g., Jimmy Traina, ‘Sopranos’ All-Time Best Sports Scenes: TRAINA THOUGHTS,

SPORTS ILLUSTRATED (June 10, 2020), https://www.si.com/extra-mustard/2020/06/10/best-

sopranos-sports-moments (commenting on a scene from The Sopranos involving sports betting).

6. See generally 28 U.S.C. §§ 3701–04 (repealed 2018) (prohibiting sports gambling).

7. 138 S. Ct. 1461 (2018).

8. Id. at 1478.

9. See Jonathan O. Ballard, Comment, Murphy v. NCAA: The Supreme Court’s Latest

Advance in Chemerinsky’s “Federalism Revolution,” 52 LOY. L.A. L. REV. 173, 173–74 (2018)

(declaring the Murphy ruling “a major victory for federalists”).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 389

hand, the federal government is uniquely capable of reining in this national

industry to minimize problem gambling, thereby inherently limiting those

benefits. If sports gambling cannot reach a critical mass of regular bettors as

legalization spreads, states will not recover as much tax revenue as

projected.

Since 2018, almost half of U.S. states have authorized sports

betting, and scores of casinos and other companies have opened

sportsbooks

to meet the growing demand.

At the same time, a concerted

effort to create more demand for sports gambling by recruiting brand-loyal

bettors has emerged as one of the noisiest marketing campaigns across all

industries.

Sportsbook advertisements have been among the most common

on television and social media platforms in the three years since Murphy.

10. See Economic Impact of Legalized Sports Betting, OXFORD ECON., 1, 4–5, 27–53 (May 2017),

https://www.americangaming.org/wp-content/uploads/2019/02/AGA-Oxford-Sports-

betting-impacts-2017-May_FINAL-report.pdf (displaying tables of theoretical state tax revenues

from sports gambling in a study commissioned by the American Gaming Association).

11. “Sportsbook” gambling is what most would recognize as sports betting; a sportsbook is

the entity, online or in-person, through which gamblers place their bets on the “moneyline” (who

wins the game), “over/under” (total points scored), or other common bets. See Types of Sports

Betting — Different Ways to Bet, GAMBLINGSITES.COM, https://www.gamblingsites.com/sports-

betting/types (last visited May 10, 2022); Darren Rovell, Where Is Sports Betting Legal? Projections

for All 50 States, ACTION NETWORK (Feb. 12, 2022, 1:05 PM), https://www.actionnetwork.com

/news/legal-sports-betting-united-states-projections.

12. Rovell, supra note 11; Ryan Rodenberg, United States of Sports Betting: An Updated Map

of Where Every State Stands, ESPN (Apr. 7, 2021), https://www.espn.com/chalk/story

/_/id/19740480/the-united-states-sports-betting-where-all-50-states-stand-legalization.

13. See Daniel Roberts, As Live Sports Return to TV, So Do DraftKings and FanDuel Ads, YAHOO!

FINANCE (Aug. 3, 2020), https://www.yahoo.com/now/as-live-sports-return-to-tv-so-do-draft-kin

gs-and-fan-duel-ads-204403327.html (explaining DraftKings and FanDuel’s race to open

sportsbooks in multiple states upon the legalization of sports betting). This concerted advertising

conspicuously expanded during Super Bowl LV in 2021, and it carried forward to Super Bowl LVI

in 2022. See Adam Chandler, Sports Betting is Ruining More Than Your Bank Account, ATLANTIC (Feb.

11, 2022) https://www.theatlantic.com/technology/archive/2022/02/sports-betting-super-bow

l/622058/ (highlighting 2021’s relevant advertising trends in the week approaching Super Bowl

LVI and referencing several issues relevant to this Comment); Joe Hernandez, Online Betting

Companies are Kicking off a Super Bowl Ad Blitz, NPR (updated Feb. 13, 2022, 6:35 PM), https

://www.npr.org/2022/02/11/1079880190/super-bowl-betting. Though it is beyond the scope

of this Comment, the running of sports gambling advertisements alongside those for cryptocurrency

investing during Super Bowl LVI merits additional consideration. See, e.g., Tiffany Hsu, Crypto

Companies Weren’t the Only Advertising First-Timers, N.Y. TIMES (Feb. 13, 2022), https://www.nytimes.c

om/2022/02/13/business/media/coinbase-crypto-super-bowl-commercials.html; Terry Nguyen,

The Winner of This Year’s Super Bowl: Money, VOX (updated Feb. 14, 2022, 9:43 AM), https://ww

w.vox.com/the-goods/22925225/super-bowl-ads-money-crypto-sports-betting.

14. See generally 138 S. Ct. 1461 (declaring the Professional and Amateur Sports Protection

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

390 ADMINISTRATIVE LAW REVIEW [74:2

Around 2015, however, a popular form of quasi-sports betting appeared

in mainstream sports discussions called daily fantasy sports (DFS).

Between 2015 and 2018, DFS incited a widespread desire to legalize sports

gambling, but there was a considerable amount of debate as to whether

lawmakers should consider DFS a form of gambling at all.

Regardless of any official distinctions between sportsbooks and DFS,

these companies are engaged in a marketing crusade that mirrors what

generations of Americans were subjected to by Big Tobacco.

Tobacco

companies were once some of the most prominent advertisers.

They

advertised on many platforms, ranging from plastering images on

billboards to sponsoring some of the most famous shows on television.

Tobacco advertising spawned many mainstream cultural institutions. For

example, R.J. Reynolds’s sponsorship of the former “Winston Cup”

greatly expanded NASCAR’s popularity outside of the South.

However, activists recognized early on that the marriage between tobacco

and the growing television industry, in particular, was problematic.

Act (PASPA) in violation of the anticommandeering rule and no provisions severable from the

provisions at issue); see also Roberts, supra note 13 (discussing the million-dollar budgets of

sportsbook advertising companies).

15. See generally Zachary Shapiro, Note, Regulation, Prohibition, and Fantasy: The Case of

FanDuel, DraftKings, and Daily Fantasy Sports in New York and Massachusetts, 7 HARV. J. SPORTS &

ENT. L. 277 (2016) (discussing the debate surrounding whether daily fantasy sports (DFS)

constitutes gambling in highly publicized state debates).

16. See, e.g., Walt Bogdanich & Jacqueline Williams, For Addicts, Fantasy Sites Can Lead to

Ruinous Path, N.Y. TIMES (Nov. 22, 2015), https://www.nytimes.com/2015/11/23/sports

/fantasy-sports-addiction-gambling-draftkings-fanduel.html. This article comes from a New

York Times series titled “Wired For Profit” published from October to November 2015. It

explores the similarities between sports gambling and daily fantasy sports. For further

discussion of the debate over DFS, see infra Part I.A.

17. See infra Parts I.A–Big Tobacco’s Mission: Priming New Generations of Smokers

18. U.S. DEP’T OF HEALTH & HUMAN SERVS., NAT’L CANCER INST., NIH PUB. NO.

07-6242, THE ROLE OF THE MEDIA IN PROMOTING & REDUCING TOBACCO USE 124–26

(2008) (displaying data comparing marketing expenditures of tobacco companies with

those of other prominent brands).

19. Press Release, Radio Corp. of Am., RCA-NBC Firsts in Color Television, a Chronological

List of Significant Firsts by the Radio Corporation of America and the National Broadcasting

Company in Color Television (Mar. 27, 1955) (on file with RCA-NBC); Madison Miller, ‘I Love Lucy’:

Lucille Ball Used a Sly Trick with Her Cigarettes to Please Sponsors, OUTSIDER (Mar. 9, 2021),

https://outsider.com/news/entertainment/i-love-lucy-lucille-ball-used-sly-trick-her-cigarettes.

20. See David Dubczak, “What If?” Part III: What If We Still Called it the Winston Cup?,

BLEACHER REP. (Jan. 18, 2010), https://bleacherreport.com/articles/328730 (noting that R.J.

Reynolds ceased sponsorship of NASCAR in the wake of early-2000s legal and political issues).

21. See Ronald Bayer, Tobacco, Commercial Speech, and Libertarian Values: The End of the Line for

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 391

Different considerations guided each era of restrictions on tobacco

advertising, from both legal and moral perspectives. For instance, in the late

1960s, the Fairness Doctrine

provided the basis for the Federal

Communications Commission’s (FCC’s) determination that networks must

allot “a significant amount” of advertising time for anti-smoking messaging

free of charge.

Other regulations, many of which existed at the state level

but were overturned judicially,

focused on prohibiting advertising in places

frequented by children, such as near schools.

Cigarette advertising

essentially earned its own jurisprudence in the Supreme Court due to its

prevalence as a hotly debated public concern.

The 2009 Family Smoking Prevention and Tobacco Control Act

(Tobacco Control Act) solidified certain restrictions on cigarette advertising

that had frequently been the subject of legal scrutiny since the 1964 Surgeon

General’s Report––the federal government’s first official recognition of the

harms associated with smoking.

From 2010 onward, the federal agencies

charged with enforcing the Tobacco Control Act have updated their

regulations and guidance documents according to the latest advertising

methods.

Different legislative and regulatory schemes have also changed each

of the enforcing agencies’ responsibilities for this issue.

Ultimately, today’s

Restrictions on Advertising?, 92 AM. J. PUB. HEALTH 356, 356 (2002) (citing Banzhaf v. F.C.C., 405

F.2d 1082, 1096–1103 (D.C. Cir. 1968)); id. at 356 (citing Advertisement of Cigarettes, 34 Fed.

Reg. 1,959, 1,960 (Feb. 11, 1969) (to be codified at 47 C.F.R. pt. 43)) (explaining that it would

be at odds with the public interest to “present advertising promoting the consumption of the

product posing [a] unique danger . . . in terms of an epidemic of deaths and disabilities”).

22. The Fairness Doctrine was a 20th century Federal Communications Commission

(FCC) rule requiring television and radio stations, then occupying a much more finite range

of broadcast frequencies, to devote airtime “to discussing controversial matters of public

interest” and “to air contrasting views regarding those matters.” See Steve Rendall, The Fairness

Doctrine: How We Lost It, and Why We Need It Back, FAIR (Jan. 1, 2005), https://fair.org

/extra/the-fairness-doctrine/.

23. Bayer, supra note 21 (internal quotation omitted).

24. See, e.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001) (holding

unconstitutional several Massachusetts regulations on cigarette advertisements).

25. Id. at 533–34 (citing 940 MASS. CODE REGS. § 21.01 (2000) (repealed 2001)).

26. See discussion infra Part I.C.

27. See 21 U.S.C. § 387 [hereinafter Tobacco Control Act]; U.S. DEP’T HEALTH, EDUC.,

& WELFARE, PUB. HEALTH SERV. PUBL’N. NO. 1103, SMOKING & HEALTH: REPORT OF THE

ADVISORY COMM.TO THE SURGEON GEN. OF THE PUB. HEALTH SERV. (1964) [hereinafter

Surgeon General’s Report].

28. See, e.g., Advertising and Promotion Guidances, U.S. FOOD & DRUG ADMIN. (May 4, 2021),

https://www.fda.gov/animal-veterinary/guidance-industry/advertising-and-promotion-

guidances (collection of linked guidance documents).

29. Compare Cigarette Labeling and Advertising Act, 15 U.S.C. § 1333(c) (giving the

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

392 ADMINISTRATIVE LAW REVIEW [74:2

regulatory model for cigarette advertising is primarily developed and enforced

by a combination of the Food and Drug Administration (FDA), the Federal

Trade Commission (FTC), and the FCC.

Since regulating sports gambling

advertising does not concern the sale of a dangerous physical product—the usual

standard for what is regulated by the FDA

—the FDA would potentially need

to have its cigarette advertising model adopted by the larger Department of

Health and Human Services (HHS), or another smaller agency within it. HHS

has several subagencies that could adopt the FDA’s role if needed.

With a complex array of advertising issues requiring multiple agencies’

jurisdictions and resources, either Congress or the President should

establish an interagency task force to create a cigarette advertising-type

regulatory framework for sports gambling. Under this framework,

different federal agencies would play distinct roles in developing and

enforcing rules pursuant to a consolidated authorizing statute or

executive order.

This model works best when an issue’s complexities

render it too cumbersome to foist onto one existing agency, but it

nonetheless has too specific a focus to warrant the creation of a whole new

agency.

The fact that a useful multiagency regulatory model already

exists—one which needs only a handful of alterations—makes the

creation of a new agency particularly redundant.

Overall, a sports gambling advertisement task force should utilize the

existing cigarette and tobacco advertisement model, but it should also

develop and enforce new rules to account for the evolving marketing

landscape. Part I of this Comment presents the parallel marketing histories

of sports gambling and cigarettes, highlighting the relative lack of regulation

for the former compared to the latter. Part II explains why the interagency

task force model is most appropriate for tackling this issue in light of the

Federal Trade Commission (FTC) authority over cigarette advertisement controls), with

Tobacco Control Act, 21 U.S.C. § 387(a) (2009) (giving responsibilities formerly held by FTC

to the U.S. Food and Drug Administration (FDA), with revisions).

30. See discussion infra Part III.

31. U.S. FOOD & DRUG ADMIN., IMPLEMENTING THE TOBACCO CONTROL ACT

THROUGH POL’Y, RULEMAKING, AND GUIDANCE (Jan. 26, 2018), https://www.fda.gov/

tobacco-products/about-center-tobacco-products-ctp/implementing-tobacco-control-act-

through-policy-rulemaking-and-guidance.

32. See id.; U.S. DEP’T OF HEALTH & HUMAN SERV., HHS AGENCIES & OFFICES, https:/

/www.hhs.gov/about/agencies/hhs-agencies-and-offices/index.html (listing the U.S. Department

of Health and Human Services (HHS) subagencies with links to each respective website).

33. See discussion infra Part III (highlighting the benefits of interagency task forces).

34. Id.

35. See discussion infra Part III (describing the multi-party agency regulatory model of FTC,

FDA, and FCC for regulating tobacco advertising, and proposing the same for sports gambling).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 393

complexity of digital advertising for sports gambling.

Part III analyzes the

jurisdiction and proposed responsibilities of each of the chosen agencies,

addressing possible challenges for each one. Finally, this Comment

concludes that the regulatory framework for cigarette and tobacco

advertising through the FTC, FDA, and FCC would capably manage the

issue of sports gambling advertising with a few modifications.

I.THE MIRRORED HISTORIES OF TOBACCO AND SPORTS GAMBLING

MARKETING

Today’s sports gambling environment comprises many different forums.

In places where sportsbooks have long taken legal bets due to exemptions in

federal law, they have a storied tradition of operating within brick-and-

mortar casinos. While there is certainly much to say about the advertising

practices utilized by traditional casinos—and that remains relevant to some

degree here—the emergence of online sports gambling has produced

advertising that resembles now-outlawed cigarette and tobacco

promotions.

Online sports gambling comes in two primary forms:

traditional sportsbook betting and DFS.

In the 1960s, cigarette advertising, then commonplace, was suddenly

exposed as a serious public health risk that lawmakers and federal regulators

wanted to mitigate.

But enforcement of rules against cigarette and tobacco

advertising did not begin in any significant way until almost the 1970s, when

the consequences of tobacco use became widely understood and accepted

after decades of disinformation.

In the decades after the release of the

Surgeon General’s Report in 1964, the Supreme Court’s opinion as to

whether tobacco companies had constitutional rights to advertise their

dangerous products was constantly in flux.

Lawmakers, attorneys, and

36. See Murphy v. NCAA, 138 S. Ct. 1461, 1484 (2018) (explaining that Congress must

explicitly and discretely authorize federal regulation of advertising for a legal product).

37. See infra Part B (discussing the history of tobacco advertising and its regulation).

38. See Types of Sports Betting — Different Ways to Bet, GAMBLINGSITES.COM,

https://www.gamblingsites.com/sports-betting/types/ (last visited May 10, 2022) (providing the

different types of sports betting). Most of the described types are available in typical sportsbooks. Id.

39. See Matthew R. Herington, Tobacco Regulation in the United States: New Opportunities and

Challenges, 23 HEALTH L. 13, 13 (2010) (reviewing the history of tobacco regulation in the

United States); see also id. at 15 (noting the effectiveness of advertising regulations in

discouraging adolescents from taking up smoking).

40. Id. at 13 (“[B]y 1968, [the] percentage [of Americans who believed smoking caused

cancer] had jumped to 78 percent.”).

41. See Bayer, supra note 21, at 356–59 (reviewing the Supreme Court decisions on

tobacco advertising from the 1980s to the 2000s).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

394 ADMINISTRATIVE LAW REVIEW [74:2

judges managed competing priorities—one in favor of free speech for

corporations and the other concerned about public health issues.

While

this legal debate took place, however, cigarette companies took advantage of

regulatory gaps and unclear commercial speech jurisprudence, bombarding

all forms of media with advertisements.

Today, lawmakers have an opportunity to mitigate widespread problem

gambling and associated health issues before the newly legalized industry

becomes too great of a problem.

To take advantage of this opportunity, they

must recognize the troubling public health similarities between the marketing

tactics of two industries selling addictive and deleterious products. Both

gambling and tobacco companies rely on captured return customers using

their products regularly and continuously.

In both industries, addictive

behavioral patterns incited and reinforced, at least in part, by exposure to

advertising leads to further consequences down the line.

While smoking and

problem gambling come with different symptoms—chronic physical illness

versus serious mental health concerns, respectively—both involve significant

long-term consequences, often including financial troubles, stemming from

“proper” use of the respective products.

Therefore, federal regulators must

analyze how sports gambling companies incorporate Big Tobacco’s

advertising methods to apply the correlative regulatory model effectively.

42. Id. at 357.

43. See COMM. ON PREVENTING NICOTINE ADDICTION IN CHILD. & YOUTHS, INST. OF MED.,

GROWING UP TOBACCO FREE: PREVENTING NICOTINE ADDICTION IN CHILDREN AND YOUTHS

107–14 (Barbara S. Lynch & Richard J. Bonnie eds., 1994) [hereinafter GROWING UP TOBACCO

FREE] (discussing the marketing forms employed by tobacco companies in the 1990s).

44. See NAT’L COUNCIL ON PROBLEM GAMBLING, A REVIEW OF SPORTS WAGERING &

GAMBLING ADDICTION STUDIES EXECUTIVE SUMMARY, https://www.ncpgambling.org/wp-

content/uploads/2020/01/Sports-gambling_NCPGLitRvwExecSummary.pdf (last visited

May 10, 2022) (explaining how the current sports betting landscape creates a unique risk of

fostering problem gambling).

45. GROWING UP TOBACCO FREE, supra note 43, at 115.

46. See Marc N. Potenza, The Neurobiology of Pathological Gambling and Drug Addiction: An

Overview and New Findings, 363 PHIL. TRANS. R. SOC. B. 3181, 3181 (2008) (noting how many of

the diagnostic criteria for problem gambling—including withdrawal, unsuccessful attempts to

quit, and interference in other areas of life—are also central to diagnoses of “drug dependence”).

47. See Marie Fazio, It’s Easy (and Legal) to Bet on Sports. Do Young Adults Know the Risks?, N.Y.

TIMES (Apr. 1, 2021), https://www.nytimes.com/2021/04/01/sports/sports-betting-addiction

.html (emphasizing the psychological, physical, and social impacts of sports betting addictions);

Implementing the Tobacco Control Act through Policy, Rulemaking, and Guidance, FDA (Jan. 26, 2018),

https://www.fda.gov/tobacco-products/about-center-tobacco-products-ctp/implementing-tobac

co-control-act-through-policy-rulemaking-and-guidance (“Tobacco is the only consumer product

regulated by [the] FDA which causes disease, disability, and death when used as intended.”).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 395

A. Daily Fantasy Ads to Murphy v. NCAA

1. How Daily Fantasy Sports Became a Widely Advertised Form of Gambling

Despite its steep increase over the last few years, the rise of sports betting

advertisements may not have been so sudden. In the 1990s, companies of

various sizes created a new fantasy sports model, a form of quasi-gambling

called daily fantasy sports. Throughout the 2000s and early 2010s, the

venture capital world became enamored with DFS and by 2015, two

companies, DraftKings and FanDuel, emerged as the powerhouses of the

budding industry, controlling ninety-five percent of the market combined.

When Congress included an exemption for fantasy sports in the anti-

gambling provisions of the SAFE Port Act of 2006,

“[n]o one

envisioned . . . that seasonal bets on fantasy teams would open the door to daily

wagering and million-dollar prizes.”

Legislators naively regarded DFS as a

harmless, logical evolution of traditional fantasy sports that teenagers play

with their friends for much smaller prizes.

In turn, DraftKings and

FanDuel, among others, embarked on an extremely aggressive advertising

campaign for their sparsely regulated business.

DFS reduces traditional fantasy sports from a season-long competition to

one that repeatedly spans one weekend or less.

In traditional fantasy sports

leagues, friends compete by “drafting” professional athletes onto their

“fantasy teams”—which participants maintain for almost the full season—

earning points based on the real-life athletes’ statistics.

Companies like

48. Shapiro, supra note 15, at 278.

49. Security and Accountability for Every Port Act, 31 U.S.C. § 5362(1)(E)(ix) (2006)

(“The term ‘bet or wager’ . . . does not include . . . participation in any fantasy or simulation

sports game or educational game or contest . . . .”).

50. Walt Bogdanich, James Glanz, & Agustin Armendariz, Cash Drops and Keystrokes: The

Dark Reality of Sports Betting and Daily Fantasy Games, N.Y. TIMES (Oct. 15, 2015), https://www.

nytimes.com/interactive/2015/10/15/us/sports-betting-daily-fantasy-games-fanduel-draftk

ings.html (emphases added).

51. See Alex Huntsberger, How Much Do People Spend on Fantasy Football, OPPU (Aug. 25,

2021), https://www.opploans.com/oppu/articles/how-much-do-people-spend-on-fantasy-

football/ (describing a survey showing that the median buy-in for a fantasy football league is

fifty dollars with a first-place prize of $350).

52. See Roberts, supra note 13.

53. Compare How To Play Daily Fantasy Sports, DRAFTKINGS, https://www.draftkings.com

/how-to-play? (last visited May 10, 2022) (“[C]ontests range from a day to a week . . . .”), with

Joseph Stromberg, Fantasy Football, Explained for Non-Football Fans, VOX (Aug. 24, 2015, 10:15 AM),

https://www.vox.com/2014/8/15/6003131/fantasy-football-how-to-play-draft-rankings

(“Traditional leagues are season-long . . . .”).

54. Stromberg, supra note 53.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

396 ADMINISTRATIVE LAW REVIEW [74:2

ESPN and Yahoo! Sports have long offered customizable online formats for

public leagues that any user can join or private leagues among friends.

In a traditional fantasy league, one could reasonably claim that a

participant’s ability makes it a legitimate game of skill. Effective participants

negotiate trades with competitors,

craft their rosters to maximize

dominance in particular aspects of the game, and keep watchful eyes on the

waiver wire.

Conversely, DFS’s condensed model makes it much less a

game of skill and more one of chance—or in other words, gambling.

see this difference, look no further than instances of unpredictable injuries or

improper calls by referees that can, in a moment, completely change the

outcome of a daily wager.

Despite these common obstacles, a moderately

knowledgeable participant in a season-long league could skillfully mitigate their

losses. Strengthening the argument that DFS is gambling is the fact that, as soon

as the Supreme Court held the federal ban on sports gambling unconstitutional,

the two largest DFS companies opened sportsbooks—a widely recognized form

of sports betting—on the same websites as their fantasy games.

55. Notably, neither ESPN nor Yahoo! Sports allow for buy-in payments to be made

directly on their websites. Participants must make their payments off the sites. Evidently, they

recognize that fantasy sports can act as a form of sports betting. See, e.g., Legal Restrictions,

ESPN, https://support.espn.com/hc/en-us/articles/115003859212-Legal-Restrictions (last

visited May 10, 2022) (“Gambling Prohibition. This Promotion is strictly for entertainment

purposes and may not be used in connection with any form of gambling.”).

56. In a season-long fantasy competition, participants can trade athletes with one another

to try to improve their teams, much like the trading that occurs in real professional sports

leagues. In DFS, no such opportunity exists, and each player is stuck with the choices they

make on any given day until that matchup is over. See supra note 53 and accompanying text.

57. “Waivers” refers to the list of available, un-rostered players, both in real life and in

fantasy sports, from which teams may select new players. In real life and traditional fantasy

leagues, there are time restrictions on acquiring players and priority picking orders for teams.

Claim a Player Off Waivers, ESPN, https://support.espn.com/hc/en-us/articles/3600

00036711-Claim-a-Player-Off-Waivers (last visited May 10, 2022).

58. Scott Nover, The Rise of Daily Fantasy and Sports Betting has Created an Economy of its Own,

VOX (Jan. 29, 2020), https://www.vox.com/2020/1/29/21112491/daily-fantasy-sports-

betting-dfs-merch-analysis-weatherman (“DFS . . . bridged the world of traditional friend-

group fantasy with what we’re seeing now: a burgeoning sports-betting market . . . .”).

59. For example, star forward Julius Randle broke his leg a mere fourteen minutes into

his NBA debut in 2014. Jeff Zillgitt, Seven NBA Rookies Who Began Careers Injured and What

Happened to Them, USA TODAY (updated Oct. 22, 2019, 11:02 AM), https://www.usatoday

.com/story/sports/nba/2019/10/22/zion-williamson-seven-nba-rookies-who-started-career

s-injured/4061189002/. DFS players who selected Randle for that night most likely lost any

chance to win money due to his injury, but traditional fantasy players, despite suffering a

significant loss for their teams, did not.

60. See DRAFTKINGS SPORTSBOOK, https://sportsbook.draftkings.com/sportsbook (last

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 397

Daily fantasy’s growth as a popular form of quasi-gambling has raised

concerns for lawmakers all over the country, so much so that debate

moderators in 2016 asked presidential candidate Jeb Bush a question on the

issue during the Republican primaries.

The debate over the status of DFS

remains unresolved, and states treat the contests differently under state law.

Some states maintain that DFS includes enough of the skill-based qualities of

traditional fantasy sports to consider it outside the reach of state gambling

laws.

Other states, including Nevada, have taken the opposite approach,

choosing to regulate DFS as a form of gambling—in effect, calling DFS’s

bluff.

Some federal agencies, including the Internal Revenue Service (IRS),

consider DFS a form of gambling; the IRS does this for tax purposes.

While

this distinction may have some significance in legal and political debates,

testimony from those suffering from gambling addiction, as well as associated

research, have overwhelmingly shown that DFS triggers the same

psychological response as any other form of sports gambling.

Capitalizing on a serious lack of state regulation or regulatory

inconsistency where DFS laws exist, DraftKings and FanDuel both advertise

prominently on television and on the Internet, particularly during live

visited May 10, 2022); FANDUEL SPORTSBOOK, https://sportsbook.fanduel.com (last visited

May 10, 2022); see also Daniel Roberts, FanDuel and DraftKings are Racing to Open Sports Betting

Operations, YAHOO! FINANCE (July 26, 2018), https://www.yahoo.com/news/fanduel-

draftkings-racing-open-sports-betting-operations-140027524.html (last visited May 10, 2021).

61. Shapiro, supra note 15, at 277–78 (highlighting the difference of opinion between

former Florida Governor Jeb Bush and then-New Jersey governor Chris Christie, a vocal

proponent of legalizing sports gambling).

62. Compare Joe Drape, Nevada Says It Will Treat Daily Fantasy Sports Sites as Gambling, N.Y. TIMES

(Oct. 15, 2015), https://www.nytimes.com/2015/10/16/sports/gambling-regulators-block-daily-

fantasy-sites-in-nevada.html (quoting a Nevada sports lawyer: “[t]he Nevada Gaming Commission

concluded that daily fantasy is gambling and needs to be licensed here”), with Dew-Becker v. Wu,

2020 IL 124472, ¶ 28 (ruling that DFS contests “are predominantly skill based”).

63. See supra note 62 and accompanying text.

64. See Drape, supra note 62 (noting that FanDuel and DraftKings continue to represent

DFS as something other than a form of gambling).

65. Applicability of Section 165(d) to Daily Fantasy Sports Transactions, C.C.A. Mem.

No. 202042015 (Sep. 14, 2020) (considering DFS a form of “wagering” under § 165(d) of the

tax code); see also 26 U.S.C. § 165(d).

66. See Bogdanich & Williams, supra note 16; Sacha Feinman & Josh Israel, The Hot New

Form of Fantasy Sports is Probably Addictive, Potentially Illegal, and Completely Unregulated,

THINKPROGRESS (May 7, 2015), https://archive.thinkprogress.org/the-hot-new-form-of

-fantasy-sports-is-probably-addictive-potentially-illegal-and-completely-4c90c89db63b/;

Steve Petrella, DFS player: How Daily Fantasy Ruined my Life, SPORTING NEWS (Oct. 8, 2015),

https://www.sportingnews.com/us/fantasy/news/daily-fantasy-sports-dfs-gambling-addicit

ion-regulation-lawsuit-industry-nfl/ffkexo2yfzb1udlyq9dc19uq.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

398 ADMINISTRATIVE LAW REVIEW [74:2

sporting events.

During the first week of the 2015 NFL season, DraftKings

spent more on television advertisements than any other company in the

United States.

The combined total advertising expenditures between

DraftKings and FanDuel exceeded $150 million in the fiscal quarter

coinciding with the start of the NFL season.

Given the similarities between

DFS and games widely recognized as gambling, the advertisements for these

companies’ sportsbooks currently use the same themes as they did when they

only hosted daily fantasy games.

Daily fantasy companies clearly seek to

capitalize on sportsbooks’ similarities to DFS in the absence of a legal

coupling of the two forms of sports gambling.

2. Murphy and Post-PASPA Advertising Trends

In 2018, the Supreme Court held PASPA unconstitutional in Murphy v.

NCAA, ruling that the Act violated the anticommandeering doctrine.

The Court reasoned that the federal government could not prevent state

governments from legalizing sports gambling.

At the time, several

states—including New Jersey (whose governor, Phil Murphy, is a named

petitioner)—wanted to pass laws authorizing and regulating sports

gambling.

In the majority opinion, Justice Alito stressed that the

provision in PASPA forbidding states from repealing their state law

prohibitions on sports gambling did not regulate private conduct, and

instead acted as a “direct command to the states” in violation of the

anticommandeering principle.

67. See Roberts, supra note 13.

68. Shapiro, supra note 15, at 282.

69. Id.

70. Compare John T. Holden & Simon A. Brandon-Lai, Advertised Incentives for Participation

in Daily Fantasy Sports Contests in 2015 and 2016: Legal Classification and Consumer Implications, 15

ENT. & SPORTS L. J. 1, 7 (2017) (highlighting “social interaction” between friends as a key

theme in DFS advertising), with DraftKings TV Spot, ‘Trash Talk’ Featuring Paul Pierce, ISPOT.TV,

https://www.ispot.tv/ad/qNNG/draftkings-trash-talk (last visited May 10, 2022) (displaying

an advertisement for DraftKings Sportsbook featuring former NBA star Paul Pierce playing

pick-up basketball with a friend while “trash talking” in a humorously positive way).

71. Murphy v. NCAA, 138 S. Ct. 1461, 1478 (2018).

72. Id. at 1481–85.

73. Adam Liptak & Kevin Draper, Supreme Court Ruling Favors Sports Betting, N.Y. TIMES

(May 14, 2018), https://www.nytimes.com/2018/05/14/us/politics/supreme-court-sports-

betting-new-jersey.html (“Across the country, state officials and representatives of the casino

industry greeted the ruling with something like glee, nowhere more than in New Jersey, which

anticipated the decision and had been prepared to quickly take advantage of it.”).

74. Murphy, 138 S. Ct. at 1481 (focusing on how § 3701(1) of the PASPA, the challenged

section of the law, did nothing but prohibit states from authorizing sports gambling).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 399

Citing legislative intent, the Murphy majority also held the PASPA

provisions that barred private individuals from “sponsor[ing], operat[ing], or

promot[ing]” sports gambling were not severable from the unconstitutional

portions of the statute;

thus, these provisions were also held

unconstitutional. Justices Breyer and Ginsburg both criticized this

severability analysis, arguing that § 3702(2)

discretely, and thus,

constitutionally, restricted individual conduct.

Therefore, Justice Ginsburg

dissented, § 3702(2) could hold on its own as a prohibition on private actors

from sponsoring, advertising, and promoting sports gambling.

Favoring

new legislation over severing PASPA, Justice Alito explicitly acknowledged

the validity of heavy regulations—rather than complete prohibitions—on

cigarette and tobacco advertising insofar as that model exists as a legally

permissible one.

Presumably, since the Murphy majority has already drawn

the connection between cigarette and sports gambling advertisements, the

Court should have no problem with federal regulators treating them alike if

properly authorized with new, constitutional legislation.

Doing so would likely provide the regulatory backdrop necessary to

prevent a problematic surge in sports gambling.

When the Supreme Court

weakened or struck down regulations on cigarette advertising in the 1990s,

teen and young adult usage increased dramatically, albeit briefly.

While

other cultural indicators may have contributed to that temporary uptick, one

could reasonably link the pro-commercial advertising jurisprudence of the

day with the smoking rate among young people.

75. Id. at 1483–84 (assuming Congress would not have wanted to prohibit advertising of

an activity that is legal under both federal and state law) (internal quotation omitted); see also

28 U.S.C. §§ 3701, 3702.

76. 28 U.S.C. § 3702 (repealed 2018).

77. Murphy, 138 S. Ct. at 1488 (Breyer, J., concurring); id. at 1489–90 (Ginsburg, J., dissenting).

78. Id. at 1489–90 (Ginsburg, J., dissenting).

79. Id. at 1484 (“If these provisions were allowed to stand, federal law would forbid the

advertising of an activity that is legal under both federal and state law, and that is something

that Congress has rarely done. For example, the advertising of cigarettes is heavily regulated

but not totally banned.”).

80. See Rich Schapiro, Sports Betting Skyrocketed in Pandemic. Experts Warn of a ‘Ticking Time Bomb’,

NBC NEWS (May 15, 2021, 6:00 PM), https://www.nbcnews.com/news/us-news/sports-betting-

skyrocketed-pandemic-experts-warn-ticking-time-bomb-n1266518 (explaining that the boom in

sports gambling cannot be sufficiently managed due to a combination of poor oversight of

problem users by gambling companies and a lack of funding for addiction nonprofits).

81. See Am. Lung Ass’n, Overall Tobacco Trends, https://www.lung.org/research/trends-

in-lung-disease/tobacco-trends-brief/overall-tobacco-trends (last visited May 10, 2022)

(displaying data from 1965–2018).

82. See generally GROWING UP TOBACCO FREE, supra note 43, at 105–34.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

400 ADMINISTRATIVE LAW REVIEW [74:2

Since at least 2015, DFS companies have bombarded every form of media

with advertising.

Following Murphy, that trend has only gotten worse, and

advertisers for sportsbooks have become similarly empowered to create new

gamblers out of America’s youth.

The sports gambling industry has largely

utilized the same marketing techniques that Big Tobacco did for the century

preceding the 2009 Tobacco Control Act.

For instance, tobacco

companies consistently hired or sponsored celebrities to promote their

brands.

Currently, actor Jamie Foxx is the face of MGM Resorts

International’s online sportsbook, BetMGM.

Several prominent former

athletes, including Michael Jordan—who, notably, ignited gambling

controversies during his storied NBA career—have been tapped to promote

sportsbooks and other gambling ventures.

These celebrity endorsements

will almost certainly inspire youth gambling in a similar way that

endorsements for cigarette brands once tempted kids to smoke.

While traditional advertising methods remain effective for creating new

demand, social media marketing for sports gambling has become

increasingly pervasive, and, arguably, plays a greater role in enticing new

young gamblers.

Younger generations are heavy social media users,

and

online sports gambling is incredibly easy to access; bettors need not even type

a URL because advertisements on social media almost always contain

hyperlinks to gambling sites.

Unlike how a smoker must go to a store to

83. Shapiro, supra note 15, at 282 (“DraftKings and FanDuel spent more than $150

million on TV and internet advertising in the quarter that included the beginning of the

football season.”) (internal citation omitted).

84. See Roberts, supra note 13; Fazio, supra note 47.

85. See generally Tobacco Control Act, 21 U.S.C. § 387 (2009); see also GROWING UP TOBACCO

FREE, supra note 43. For further discussion of cigarette advertising, see infra Part I.B–C.

86. See, e.g., Miller, supra note 19 (describing Lucille Ball’s cigarette habit due to sponsorship).

87. Larry Gibbs, Add Jamie Foxx for BetMGM to Growing List of Celebrities Pitching for

Sportsbooks, WSN (Sept. 24, 2020), https://www.wsn.com/betting/jamie-foxx-for-betmgm-to-

growing-list-of-celebrities-pitching-for-sportsbooks/.

88. See id.

89. See Am. Ass’n of Advert. Agencies, Celebrity Endorsers Have More Impact on Young Consumers,

4A’S (Nov. 23, 2009, 6:44 PM), https://www.aaaa.org/111709_celebrity/?cn-reloaded=1.

90. See Jessica Bursztynsky, Instagram is the Best Way to Market to Teens, Says Piper Jaffray

Survey, CNBC (Apr. 8, 2019, 12:57 PM), https://www.cnbc.com/2019/04/08/instagram-

best-for-marketing-to-teens-snapchat-second-piper-jaffray.html.

91. Social Media Fact Sheet, PEW RSCH. CTR. (Apr. 7, 2021), https://www.pewresearch.org

/internet/fact-sheet/social-media/.

92. Wayne Parry, Bet Responsibly? A Struggle for Some as Sportsbook Ads Widen, ASSOC. PRESS

(June 1, 2019), https://apnews.com/article/nm-state-wire-nv-state-wire-sports-betting-wv-

state-wire-ap-top-news-15962a368b3d4250bd717906d442e8a2.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 401

buy cigarettes, an online sports bettor can gamble from their couch.

While DraftKings, FanDuel, and other gambling companies market

aggressively online, typical consumers would not mistake their advertising for

anything other than advertising due to both companies’ preferences for

traditional advertising. On the other hand, Barstool Sports (Barstool), a

controversial, but extremely popular sports entertainment and gambling

company,

takes a much more interactive approach to priming new

gamblers. Barstool existed long before sports gambling prohibitions were

repealed at the federal level, but it has offered gambling-related content since

its inception.

The company, founded by Dave Portnoy,

primarily

operates through social media, with a significant presence on Twitter,

Instagram, and other popular websites.

It produces dozens of podcasts,

YouTube series, and even had two brief television stints on Comedy Central

and ESPN.

Barstool also contracts with local social media promoters,

typically college students, to whom it licenses trademarks on the Internet.

While the company does not require student representatives to promote Barstool

Sportsbook—and there is little evidence, if any, that college representatives

promote gambling explicitly—the brand strength achieved by its non-gambling

entertainment ventures undoubtedly draws young followers to the gambling

operation.

100

Just as tobacco companies have long tried to link smoking to a fun

93. See id.

94. See BARSTOOL SPORTS, https://www.barstoolsports.com (last visited May 10, 2021).

95. Chris Spargo, Saturdays are for the Boys: How Barstool Sports Grew from a Local Boston Paper into a

Media Empire, DAILY MAIL (Nov. 23, 2016, 3:38 PM), https://www.dailymail.co.uk/news/ article-

3960576/Saturdays-boys-Barstool-Sports-grew-local-Boston-paper-media-empire.html.

96. See infra, note 100 and accompanying text.

97. See Advertising Inquiries, BARSTOOL SPORTS, LLKhttps://www.barstoolsports.com

/partnerships (last visited May 10, 2022) (showing statistics about the company’s high

engagement with its audience).

98. Michael David Smith, NFL Pulls Credentials from Barstool Sports, NBC SPORTS (Jan. 31,

2017, 8:58 AM), https://profootballtalk.nbcsports.com/2017/01/31/nfl-pulls-credentials-

from-barstool-sports/; Brian Steinberg, ESPN Cancels ‘Barstool Van Talk,’ Citing Concerns About

Barstool Content, VARIETY (Oct. 23, 2017, 1:05 PM), https://variety.com/2017/tv/news/espn-

cancel-barstool-van-talk-1202596760/.

99. See generally Viceroy Agreement, BARSTOOL SPORTS, https://www.barstoolsports.com

/viceroy-signup (last visited May 10, 2022). This page outlines the specific rules and

responsibilities that social media users running what effectively amount to online franchises

must adhere to while using Barstool’s trademark.

100. See Peter Kafka, A Casino Company is Buying Barstool Sports in a $450 Million Deal, VOX (Jan.

29, 2020, 1:37 AM), https://www.vox.com/recode/2020/1/29/21113130/barstool-sports-penn-

national-deal-dave-portnoy-chernin (“Penn National . . . seems to think it can use Barstool’s brand

to bring traffic to its casinos and an online betting app it wants to launch.”); John Dick, Barstool Sports

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

402 ADMINISTRATIVE LAW REVIEW [74:2

night out, sports gambling firms seek to tie wagering money to the enjoyment of

athletic competitions. In fact, studies have shown a correlation between the

1990s bump in young adult smoking rates with some of the more lenient terms

in the 1998 Master Settlement Agreement

101

that allowed tobacco promotions

at certain venues, most often bars and nightclubs.

102

Instead of advertising using traditional techniques, Barstool has completely

invested in the influencer

103

and sponsorship strategies. The company can

largely attribute its direct-to-consumer marketing strength to The Chernin

Group (TCG), which acquired a majority ownership stake in Barstool Sports in

2016.

104

TCG, founded by longtime media executive Peter Chernin, has

focused its portfolio on online content ranging from music to hunting videos to

anime.

105

Barstool’s partnership with TCG alone is not in and of itself

problematic. Online content creators frequently contract with media companies

and consultants to help promote their brands without instigating larger social

issues. Instead, federal advertising regulators should take notice of the meeting

of Barstool’s partnerships with TCG and Penn National Gaming.

106

is Legit, CIVIC SCI. (Aug. 14, 2019), https://civicscience.com/barstool-sports-is-legit/ (“A whopping

67% of daily Barstool users are under the age of [thirty].”). Recently, Penn National’s relationship

with Barstool has drawn scrutiny following a series of sexual assault allegations against Dave Portnoy.

Katherine Sayre and Omar Abdel-Baqui, Dave Portnoy Accusations Prompt Scrutiny of Barstool as Penn

National Pursues Acquisition, WALL ST. J. (Mar. 17, 2022), https://www.wsj.com/articles/dave-port

noy-accusations-prompt-scrutiny-of-barstool-as-penn-national-pursues-acquisition-11647511200.

101. See generally Tobacco Master Settlement Agreement (MSA) (1998). The MSA

accomplished a lot of what federal regulators could not at that time, which helped establish

many of the rules that Congress authorized the FDA to adopt in 2009. See Anne Hurst, Note,

Marketing, Federalism, and the Fight Against Teen E-Cigarette Use: Analyzing State and Local Legislative

Options, 69 CASE W. RSRV. L. REV. 173, 183–87 (2018) (noting benefits of state-led approaches

while highlighting issues which must be addressed federally).

102. See Nancy A. Rigotti, Susan E. Moran & Henry Weschler, US College Students’

Exposure to Tobacco Promotions: Prevalence and Association with Tobacco Use, 95 AM. J. PUB. HEALTH

138, 138, 142 (2005); see also Am. Lung. Ass’n, supra note 81.

103. The term “influencer” refers to an online personality who has “the power to affect the

purchasing decisions of others because of his or her authority, knowledge, position, or relationship

with his or her audience.” Werner Geyser, What is an Influencer? — Social Media Influencers Defined

[Updated 2022], INFLUENCER MKTG. HUB (Jan. 27, 2022), https://influencermarketinghub.com

/what-is-an-influencer/. Oftentimes, this endorsement power is earned by simply accumulating

large, engaged followings within social niches, which makes influencers’ endorsements valuable to

sellers of certain products enjoyed by those niches. See id.

104. Noah Kulwin, The Chernin Group is Taking a Majority Stake in Controversial Website Barstool

Sports, VOX (Jan. 7, 2016, 11:10 AM), https://www.vox.com/2016/1/7/11588594/the-chernin-

group-is-taking-a-majority-stake-in-controversial-website.

105. Portfolio, THE CHERNIN GRP., https://tcg.co/portfolio/ (last visited May 10, 2021).

106. See Kafka, supra note 100.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 403

In 2020, Barstool Sports officially transitioned into a gambling company,

transcending the bounds of the sports media industry.

107

Consequently, for

regulators, the company now belongs among the ranks of casinos, online

sportsbooks, and daily fantasy sports sites. Barstool’s shift to operating a sports

betting enterprise raises questions as to what degree its entertainment content

acts as a network of advertisements meant to promote the sportsbook. Social

media influencing is a complicated topic, especially in the sports gambling

industry, but federal regulators have already added it as an agenda item for

further rulemaking.

108

Similarly, regulators should investigate the effect on

sports gambling participation when mainstream sports networks, like ESPN,

visibly partner with sportsbook and DFS companies. Overall, today’s sports

betting advertising landscape mirrors that of last century’s cigarette and

tobacco marketing, as well as current Big Tobacco advertising.

109

As such,

regulations and restrictions like those currently applied to cigarette companies

should apply to sports gambling companies.

B. Big Tobacco’s Mission: Priming New Generations of Smokers

As much as gambling helped spark the early development of American

culture, “[t]he history of tobacco is inextricably linked with the history of the

United States” as well.

110

From the end of World War II to the late 1960s,

tobacco companies took full advantage of the budding television advertising

industry, and, to a degree, financed the rise of television itself.

111

For

example, in 1954, R.J. Reynolds Tobacco Company sponsored the first ever

NBC color TV newscast, Camel News Caravan.

112

Phillip Morris, a major

tobacco manufacturer, bankrolled I Love Lucy, the famous 1950s comedy

watched by families nationwide, for most of the show’s run.

113

107. Id.

108. Press Release, FTC, CSGO Lotto Owners Settle FTC’s First-Ever Complaint

Against Individual Social Media Influencers (Sept. 7, 2017) [hereinafter FTC, CSGO Lotto

Press Release]. See discussion infra Part III.A (noting how FTC social media advertising rules

should apply to Barstool and others).

109. See Andrew Rowell, Big Tobacco Wants Social Media Influencers to Promote its Products—

Can the Platforms Stop It?, THE CONVERSATION (Jan. 23, 2020, 3:46 AM), https://theconver

sation.com/big-tobacco-wants-social-media-influencers-to-promote-its-products-can-the-p

latforms-stop-it-129957 (noting that, as recently as five years ago, tobacco companies began

looking toward social media to replace old marketing platforms).

110. Herington, supra note 39, at 13.

111. See supra note 19 and accompanying text.

112. Id.

113. Miller, supra note 19.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

404 ADMINISTRATIVE LAW REVIEW [74:2

As commercial speech jurisprudence developed mid-century,

114

Big

Tobacco continued its intense media campaign. While cigarette

companies continue to deny this reality, the intention behind their

marketing is, and has always been, clear: cigarette advertising primarily

targets young people because they make up the next generation of

smokers.

115

Researchers have broadly determined that the cigarette

market displays an extremely high degree of brand loyalty; Big Tobacco

knows this intimately.

116

As such, advertising rarely entices active adult

smokers into trying new brands.

117

Therefore, in order to acquire new,

young, and loyal customers, tobacco companies used advertising strategies

common for children and teens’ products.

118

Oftentimes, this was done

through the use of characters that represented youthful social aspirations

such as popularity, fitting in, anxiety relief, and a rite of passage to

adulthood.

119

One of the most notable examples of this is the “Marlboro

Man,” the cowboy character developed by Philip Morris in 1954.

120

modern examples like R.J. Reynolds’s “Old Joe Camel” made particularly

clear that cigarette advertising first and foremost targeted young people.

121

C. The Movement to Minimize Cigarette Marketing

In 1964, Surgeon General Luther L. Terry and the Advisory Committee

on Smoking and Health published the U.S. government’s first official

recognition that smoking cigarettes can cause certain cancers and chronic

bronchitis.

122

The report spurred a movement for regulating the cigarette

and tobacco industry in many ways, including regulating where people can

114. See discussion of commercial speech jurisprudence infra notes 132–149 and

accompanying text.

115. GROWING UP TOBACCO FREE, supra note 43, at 115.

116. Id. at 115–17 (explaining how tobacco market segmentation works and why

advertisements appeal to children and teens).

117. Id. at 116.

118. See id. at 116–21.

119. Id. at 120–21.

120. See Adrian Shirk, The Real Marlboro Man, ATLANTIC (Feb. 17, 2015),

https://www.theatlantic.com/business/archive/2015/02/the-real-marlboro-man/385447/.

While Marlboro Man did not necessarily target children specifically, it would be difficult to

argue that one of the most successful advertising campaigns of all time did not, in some way,

entice children and teenagers to smoke. See GROWING UP TOBACCO FREE, supra note 43, at

120 (“Indeed, the popularity of the Marlboro cowboy dispels the myth that in order to appeal

to young people . . . , the ad must show young people.”) (internal citation omitted).

121. See GROWING UP TOBACCO FREE, supra note 43, at 116–17; Bayer, supra note 21, at 358.

122. See Surgeon General’s Report, supra note 27, at 7–8.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 405

smoke, cigarette ingredients, and the age at which Americans can purchase

tobacco.

123

Requiring that cigarette companies place a “Surgeon General’s

Warning” label on every box provides an example of a significant regulation

specifically designed to discourage new smokers.

124

The FDA currently

enforces this rule in place of the FTC, which originally had this authority.

125

One of the most important and expansive sets of regulations on tobacco,

however, remains the limitations on marketing imposed on tobacco

companies. From the very beginning of widespread television viewership,

activists recognized the problematic marriage between the growing television

industry and tobacco companies.

126

In 1967, John Banzhaf—The George

Washington University law professor who founded the group Action on

Smoking and Health—petitioned the FCC to require that public airwaves

publish content that countered the prominent cigarette advertisements on

TV.

127

In the era of the Fairness Doctrine, the FCC agreed with the argument

that a narrowly tailored counter against this specific public health issue was

worthwhile.

128

The Commission would soon thereafter require that TV and

radio stations allot “a significant amount of time” to anti-cigarette messaging free

of charge.

129

In 1971, the FCC went even further, completely banning cigarette

advertisements on regulated television and radio airwaves, and in 1986, applying

the prohibition to smokeless tobacco.

130

These FCC prohibitions remain in

place, even after the abolition of the Fairness Doctrine in 1987.

131

Within the Supreme Court’s development of a new commercial speech

jurisprudence, the Court considered the cigarette question. For most of

American history, the Court held that regulating purely commercial speech

falls outside of constitutional scrutiny.

132

Starting in the mid-1970s, however,

123. See Herington, supra note 39, at 13.

124. Id.

125. See 21 C.F.R. §§ 1143.3, 1143.5 (2018).

126. See supra note 21 and accompanying text.

127. Bayer, supra note 21, at 356.

128. Id. at 356–57.

129. Id. at 356; see also Banzhaf v. FCC, 405 F.2d 1082, 1093–1103 (D.C. Cir. 1968) (affirming

the FCC’s authority to impose this requirement on TV and radio stations and holding that the

Commission’s ruling did not violate the First Amendment).

130. What do Tobacco Advertising Restrictions Look Like Today?, TRUTH INITIATIVE (Feb. 6, 2017),

https://truthinitiative.org/research-resources/tobacco-industry-marketing/what-do-tobacco-

advertising-restrictions-look-today.

131. Id.

132. See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (“[T]he Constitution imposes

no such restraint on government as respects purely commercial advertising. Whether, and to what

extent, one may promote or pursue a gainful occupation in the streets, to what extent such activity

shall be adjudged a derogation of the public right of user, are matters for legislative judgment.”).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

406 ADMINISTRATIVE LAW REVIEW [74:2

the Court reevaluated this position, holding that, although commercial

speech does merit some constitutional protection, it deserves

“less . . . protection than social or political discourse.”

133

In fact, public

health concerns, such as “abortion referral services, advertisements for

contraceptives, [and] the price of pharmaceuticals” provided the backdrop

for the Court’s evolving standards of balancing consumer protections with

free speech.

134

When the Court decided Central Hudson Gas & Electric Corp. v.

Public Service Commission

135

in 1980, it created a four-part test for commercial

speech regulation, “emphasizing its lower level of constitutional scrutiny:”

136

At the outset, we must determine whether the expression is protected by the First

Amendment. For commercial speech to come within that provision, it at least must

concern lawful activity and not be misleading. Next, we ask whether the asserted

governmental interest is substantial. If both inquiries yield positive answers, we must

determine whether the regulation directly advances the governmental interest asserted,

and whether it is not more extensive than is necessary to serve that interest.

137

Even as the Supreme Court maintained the Central Hudson test, the 1990s

represented an era of departure from precedent.

138

In several notable cases, including two involving gambling advertisements,

the Court strengthened the First Amendment rights of private businesses to

advertise.

139

In FDA v. Brown & Williamson Tobacco Corp.,

140

the Court held

that the FDA overstepped its authority by “promulgat[ing] regulations

governing tobacco products’ promotion, labeling, and accessibility to

children and adolescents.”

141

Relying on Chevron U.S.A., Inc. v. Natural Resources

133. Lawrence O. Gostin, Corporate Speech and the Constitution: The Deregulation of Tobacco

Advertising, 92 AM. J. PUB. HEALTH 352, 352 (2002) (internal citation omitted).

134. Id. (internal citations omitted).

135. 447 U.S. 557 (1980).

136. Gostin, supra note 133, at 352.

137. Central Hudson, 447 U.S. at 566 (establishing the “Central Hudson test” for

commercial speech regulation).

138. Gostin, supra note 133, at 352.

139. Compare United States v. Edge Broad. Co., 509 U.S. 418, 426, 428–31 (1993)

(determining that, under the Central Hudson test, a federal law prohibiting broadcasters in legal-

lottery states from broadcasting lottery advertisements in non-lottery states advanced the

government’s interest in accommodating states that wanted to discourage lottery

participation), with Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 190–

91, 195–96 (1999) (declining to extend Edge, deciding that 18 U.S.C. § 1304 and

corresponding FCC regulations violated the First Amendment rights of private casinos in legal

states wishing to advertise in states where casinos were illegal).

140. 529 U.S. 120 (2000).

141. Id. at 120, 128–29, 161.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 407

Defense Council, Inc.,

142

the Court determined that the FDA erred in

interpreting its authorizing statute as allowing it to regulate cigarettes

because it had not previously regulated tobacco products, and Congress had

explicitly given tobacco regulation duties to other agencies.

143

This trend of conferring First Amendment rights on private companies

paved the way for the Court to rule in Lorillard Tobacco Co. v. Reilly

144

that

Massachusetts state regulations on cigarette advertising violated the

Constitution.

145

Massachusetts’s former scheme included rules ranging

from prohibiting tobacco advertisements near schools, to regulating at

what height stores could shelve cigarettes and smoking paraphernalia.

146

The Court first focused on federal preemption in striking down these state

regulations, but it took the opportunity to additionally invalidate them on

First Amendment grounds.

147

It required nearly another decade of

congressional back-and-forth to pass the 2009 Tobacco Control Act.

Even after Lorillard, and likely because of the 2009 law passed in the

meantime, the Supreme Court chose not to review a Sixth Circuit

affirmation

148

of FDA regulations on cigarette packaging in 2013. The Court

clearly felt that enough consideration of prior jurisprudence had been taken

in promulgating new rules that it could allow the rules to stand. Even though

the Supreme Court and federal advertising regulators have routinely upheld

advertising restrictions for industries creating public health concerns,

149

the

federal government has not put forth enough regulations to combat the issue

of exploding sports gambling marketing.

142. 467 U.S. 837 (1984).

143. Brown & Williamson, 529 U.S. at 132–33, 161 (“[N]o matter how ‘important,

conspicuous, and controversial’ the issue . . . , an administrative agency’s power to

regulate . . . must always be grounded in a valid grant of authority from Congress.”) (quoting

529 U.S. at 190 (Breyer, J., dissenting)).

144. 533 U.S. 525 (2001).

145. Id. at 525.

146. Id. at 533–36.

147. Id. at 571.

148. Sam Baker, Supreme Court Rejects Challenge to Tobacco Warnings, THE HILL (Apr. 22, 2013

2:45 PM), https://thehill.com/policy/healthcare/295255-supreme-court-rejects-challenge-to-

tobacco-warnings; see also Discount Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509

(6th Cir. 2012) (upholding numerous FDA regulations on cigarette advertising).

149. Cf. Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566

(1980) (establishing the test for commercial speech balancing free speech with substantial

government interest).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

408 ADMINISTRATIVE LAW REVIEW [74:2

II. THE INTERAGENCY TASK FORCE MODEL

For many regulatory issues, a single agency or department has all the tools

needed to create and enforce its rules. Alternatively, the interagency task

force model is frequently used when the federal government needs to regulate

in a way that requires “a whole-of-government approach” in combatting

complex issues.

150

This seems particularly true when initiatives require a

combination of existing rulemaking and enforcement mechanisms.

Interagency task forces come with two primary benefits: personnel flexibility

and a greater abundance of resources.

151

The ability of task forces to include multiple agencies and institutions

flexibly allows for the widest range of expertise possible. For example, the

President’s Interagency Task Force to Monitor and Combat Trafficking in

Persons was established in 2000 with the stated goal of combatting human

trafficking, slavery, and other related human rights violations in the United

States and abroad.

152

Congress authorized the President to establish this task

force under the Victims of Trafficking and Violence Protection Act of 2000,

requiring that it be chaired by the Secretary of State, and that it include six

other listed Cabinet-level officials and offices.

153

Other than those officials

required by the statute, the President chose independently to include nine

other agencies and executive offices to make use of their jurisdiction and

resources.

154

This collaboration has been invaluable because enforcement

against human trafficking requires a multifaceted approach—covering

distinct issues such as domestic law enforcement training, foreign affairs, data

gathering and intelligence, and assistance for formerly trafficked persons.

155

Many more examples have followed this same or a similar formula. The

Interagency Task Force on Agriculture and Rural Prosperity

156

includes

150. Federal Response on Human Trafficking: Interagency Taskforce, U.S. DEP’T OF STATE,

https://www.state.gov/humantrafficking-interagency-task-force/ (last visited May 10, 2022).

151. U.S. DEP’T OF JUST., OFF. OF JUST. PROGRAMS, OFF. FOR VICTIMS OF CRIME,

TRAINING & TECH. ASSISTANCE CTR., HUM. TRAFFICKING TASK FORCE E-GUIDE (2011).

152. 22 U.S.C. § 7103 (2000).

153. Id. at § 7103(b)–(c).

154. See Agencies of the President’s Interagency Task Force to Monitor & Combat Trafficking in

Persons, U.S. DEP’T OF STATE, https://www.state.gov/humantrafficking-agencies-of-the-

presidents-interagency-task-force-to-monitor-and-combat-trafficking-in-persons (last visited

May 10, 2022) (listing agencies that the President added to the task force’s membership, some

of which are not statutorily mandated to participate).

155. Id.

156. Exec. Order No. 13,790, 82 Fed. Reg. 20237 (Apr. 25, 2017); USDA, REP. TO THE

PRESIDENT OF THE U.S. FROM THE TASK FORCE ON AGRIC. & RURAL PROSPERITY (2017)

[hereinafter USDA CHAIR’S REPORT].

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 409

twenty-one Cabinet-level departments and other executive agencies.

157

The

page of the U.S. Department of Agriculture Chair’s Report that lists the

member agencies includes a seemingly inconsequential but nonetheless

important line explaining why interagency task forces work well, stating that

they “capitalize on the programmatic specialties spanning the federal

government.”

158

Provisions allowing task force chairs to recommend and

invite officers and employees from other agencies provide flexibility for a

centrally agreed-upon rulemaking and enforcement process.

159

Congress has already determined that the task force approach is

appropriate for combatting smoking, establishing the Interagency

Committee on Smoking and Health (ICSH) under an amendment to the

Cigarette Labeling and Advertising Act in 1984.

160

The task force model was

chosen for this issue because of the need for a coordinated mission that

involved concerns such as public health, education, advertising, and many

others.

161

The Secretary of HHS chairs the task force, supervising various

internal subagencies focused on health issues associated with smoking and

tobacco use.

162

Additionally, the Committee must include at least one

representative from the FTC, Department of Education, Department of

Labor, and, again, “any other [f]ederal agency designated by the Secretary,”

establishing the necessary flexibility.

163

Public notice-and-comment is

required for all Committee meetings, allowing stakeholders to track and

opine on regulatory movement before each member agency implements

changes recommended by the Committee.

164

Fundamentally, interagency task forces primarily exist to conduct

consolidated or shared research so that all member agencies have a unified,

or at least mutually understood approach to dealing with complex issues.

For example, the Centers for Disease Control and Prevention’s Office on

Smoking and Health (OSH)—a participating member agency in the

ICSH—published a report in 2003 with recommendations to federal and

state agencies on how to design and implement counter-marketing

157. USDA CHAIR’S REPORT, supra note 156, at 13.

158. Id.

159. See, e.g., Exec. Order No. 14,011, 86 Fed. Reg. 8273 § 3(a)(vi) (Feb. 2, 2021) (incorporating

this type of provision into the Interagency Task Force on the Reunification of Families).

160. Comprehensive Smoking Education Act, 15 U.S.C. §§ 1331, 1341(b) (1984).

161. See U.S. DEP’T OF HEALTH & HUM. SERVS., CHARTER, INTERAGENCY COMM. ON

SMOKING & HEALTH RENEWAL 2021–2023, at 1–2 (Mar. 20, 2021) (defining the “Objective

and Scope of Activities” and the “Description of Duties”).

162. 15 U.S.C. §§ 1341(a), 1341(b)(1)(A).

163. Id. at § 1341(b)(1)(C).

164. U.S. DEP’T OF HEALTH & HUM. SERVS., CHARTER, INTERAGENCY COMM. ON

SMOKING & HEALTH 2 (Mar. 20, 2021).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

410 ADMINISTRATIVE LAW REVIEW [74:2

campaigns against tobacco companies.

165

In 2019, then-FDA Director of Public

Health & Education Gem Benoza gave a presentation at an ICSH public

committee meeting.

166

In her presentation, Benoza spoke about the FDA’s anti-

vaping “Real Cost” campaign that launched in 2014, highlighting some of its

main messages for teens that reflect the studies done by OSH over a decade

earlier.

167

While the FDA may or may not have intentionally designed its “Real

Cost” campaign around OSH’s decade-old research, communication through

the ICHS likely contributed to the development of that messaging.

Regulating advertisements for sports gambling will require the flexibility

and research quality associated with interagency task forces. While several

agencies already have congressional authorization to regulate advertisements

in the manner necessary to tackle sports gambling addiction—

notwithstanding the need for new, targeted legislation—those agencies

should come together to plan research, coordinate regulations, and provide

unified notice-and-comment opportunities to stakeholders. An Interagency

Task Force on Sports Gambling Marketing could model its coordinated

advertising regulatory scheme off the cigarette and tobacco model to meet

a similarly complex issue head-on.

III.RECOMMENDATIONS FOR THE INTERAGENCY TASK FORCE ON

SPORTS GAMBLING MARKETING: AGENCY ANALYSIS

Of the chosen agencies, each already has, or once had, a distinct role

in regulating cigarette advertisements.

168

Those responsibilities would

translate well into a framework for regulating the marketing of a newly

legal, highly addictive, and heavily advertised sports gambling industry.

However, the existing regulatory structure for cigarette and tobacco

advertising does not sufficiently address the complexities of the current

sports gambling advertisement issue because of the contemporary

165. CTRS. FOR DISEASE CONTROL & PREVENTION, OFF. ON SMOKING & HEALTH,

DESIGNING AND IMPLEMENTING AN EFFECTIVE TOBACCO COUNTER-MARKETING

CAMPAIGN 171–77 (1st ed. 2003) [hereinafter CDC TOBACCO COUNTER-MARKETING].

166. PUBLIC COMM. MEETING INTERAGENCY COMM. ON SMOKING & HEALTH,

EMPOWERING YOUTH & YOUTH INFLUENCERS TO PREVENT THE USE OF EMERGING

TOBACCO PRODUCTS, RECORD OF THE MEETING (Sept. 9, 2019, 9:00 AM).

167. Compare id. at 13–15 (describing teen-focused anti-vaping messaging that

incorporates themes such as aging, tooth loss, bullying, and mental health decline caused by

nicotine addiction), with CDC TOBACCO COUNTER-MARKETING, supra note 156, at 172–73

(citing a focus on health issues and the “repositioning” of teen-focused themes like “rebellion

and independence” as effective messages to reduce adolescent smoking).

168. See discussion supra note 29 (explaining how the FDA adopted cigarette advertising

regulation responsibilities once held by the FTC).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 411

prevalence of social media. Nevertheless, the agencies involved in this

proposal already perform many of the tasks necessary for a more

comprehensive approach. This Part will describe the role each agency

should take in the task force based on the legal authority they hold.

A. The Federal Trade Commission—Protecting Consumers from a Novel,

Predatory Industry

Advertising for sportsbooks and DFS commonly occurs on the Internet,

particularly social media,

169

and some of this advertising likely misleads

consumers. Online advertising requires oversight from the FTC, as the

Federal Trade Commission Act “prohibits unfair or deceptive advertising in

any medium.”

170

Although the Internet did not exist when President Wilson

signed the Act into law in 1914, the FTC’s jurisdiction over Internet

advertising has generally not been questioned. This authority to enact and

enforce regulations on online advertising might appear broad, but the

Commission simply applies the same rulemaking and enforcement

mechanisms to the Internet that already apply to traditional forms of

advertising.

171

In other words, the FTC treats Internet advertising as having

the same fundamentals as all other forms of marketing.

172

Regarding online sports gambling marketing, the FTC must address social

media influencers disguising advertisements as entertainment content.

“Influencer” advertising has become one of the most commonplace forms of

marketing, covering most industries and present everywhere with widespread

access to social media. Distinguishing between an advertisement and

entertainment content is key to addressing marketing on social media. FTC

regulations have covered endorsements since 1980, but the Commission took

almost thirty years to update regulations for Internet endorsements, and took

another decade to recognize that social media influencing required new rule

interpretations to apply existing rules to this new form of marketing.

173

From

169. See Sports Betting & Social Media — What’s Hot, What’s Not, and What’s Coming Next,

BETMGM, https://www.betmgminc.com/blog/industry-news/sports-betting-social-media/

(last visited May 10, 2022).

170. FED. TRADE COMM’N, ADVERTISING AND MARKETING ON THE INTERNET: RULES OF

THE ROAD 1–2 (2000), https://www.ftc.gov/system/files/documents/plain-language/bus28-

advertising-and-marketing-internet-rules-road2018.pdf [hereinafter RULES OF THE ROAD];

Federal Trade Commission Act, 15 U.S.C. § 41.

171. RULES OF THE ROAD, supra note 170, at 1 (“[M]any of the same rules that apply to

other forms of advertising apply to electronic marketing.”).

172. Id.

173. Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16

C.F.R. § 255 (2009); Press Release, FTC, FTC Seeks Public Comment on its Endorsement

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

412 ADMINISTRATIVE LAW REVIEW [74:2

a practical standpoint, the key difference between traditional and influencer

advertising is that influencers, through their presence as “content creators”

on social media, can disguise advertisements as entertainment.

174

Furthermore, social media blurs the line between friend and public figure,

and followers develop parasocial relationships

175

with online personalities

trying to sell them products.

176

In simplest terms, this resembles the

relationship a bar patron develops with a bartender. A bartender will socially

engage a patron in the hope that the customer will continue to order drinks

and tip, while the patron perceives the bartender as a friendly face.

The FTC first took action against social media influencers in 2017, when

the Commission alleged that two widely followed online video-gamers,

Trevor “TmarTn” Martin and Thomas “Syndicate” Cassell, marketed a

gambling-type website to gamers as if they did not personally own it and

financially benefit from its use.

177

CSGOLotto, Inc. (CSGO Lotto) formerly

allowed players of the first-person shooter game, Counter Strike: Global Offensive,

to buy, sell, trade, and gamble for “skins”

178

using real money.

179

Martin and

Cassell both posted several videos on their respective YouTube channels with

titles such as, l to promote their website.

180

They also hired other online

influencers, paying some up to $55,000, to promote the site.

181

The FTC

mainly took issue with Martin and Cassell posting promotional content

without disclosing their ownership of the company.

182

Guides (Feb. 12, 2020).

174. See Nick Levine, This is How Instagram is Cracking Down on Influencers Who Aren’t Honest

About Sponsored Posts, REFINERY29 (Oct. 25, 2020), https://www.refinery29.com/en-

gb/instagram-cracking-down-on-influencers-hiding-ads (discussing some platforms’ attempts

to eliminate disguised influencer advertising).

175. Some experts define para-social relationships as “‘the illusion of friendship’ with a

public persona.” Elise Brisco, Twitter is Buzzing About ‘Parasocial Relationships.’ Are They

Unhealthy?, USA TODAY (Sept. 28, 2021, 11:06 AM), https://www.usatoday.com/story/

life/health-wellness/2021/09/28/parasocial-relationship-explained-meaning-and-unhealthy

/5892428001/.

176. See Andrea Lindal, Parasocial Relationships and Business Marketing, LEXABI COMMC’NS (Sept.

13, 2020), https://lexabi.com/parasocial-relationships-and-business-marketing/ (explaining why

consumers respond well to para-social relationship advertising).

177. See FTC, CSGO Lotto Press Release.

178. In the video gaming context, “skins” are artwork for in-game weapons and

characters. Id.

179. Id.

180. Id.

181. Id.

182. See id. (finding that paid influencers were also prohibited from making negative

statements about CSGO Lotto, Inc.).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 413

Barstool Sports’ rise as a commonplace online presence raises similar

issues as the CSGO Lotto case. Unlike CSGO Lotto, the business

connection between Barstool’s online cast and the company’s sportsbook

operation is quite evident.

183

Both issues, however, concern people and

companies with massive online followings promoting a gambling enterprise

they created after earning mainstream popularity.

Regarding social media influencing in general, Barstool usually discloses

when a tweet or Instagram post is an advertisement for the Barstool

Sportsbook.

184

Even still, Barstool’s main cast members, including founder

Dave Portnoy, host a podcast dedicated to offering sports betting “advice.”

185

The Barstool Pick Em podcast is published through the media enterprise, not

Barstool Sportsbook.

186

In other cases, however, social media content and

other forms of entertainment fail to make abundantly clear that Barstool is

fundamentally a gambling company.

187

For instance, Barstool Sports’

Instagram account has long featured a variety of amateur videos—oftentimes

objectifying young women or showing college students drinking heavily and

acting recklessly—that serve to promote the Barstool brand.

188

Given that

183. For the most part, Barstool personnel accounts link to the company’s main social

media accounts or feature Barstool’s intellectual property in some way. See, e.g., Dan “Big

Cat” Katz (@BarstoolBigCat), TWITTER, https://twitter.com/BarstoolBigCat (last visited

May 10, 2022).

184. Compare Dave Portnoy (@stoolpresidente), TWITTER (Sept. 5, 2021, 5:40 PM),

https://twitter.com/stoolpresidente/status/1434632579936833538?lang=en (featuring a

promotion for a branded hoodie that features a banner, albeit a small one, for the problem

gambling hotline), with Dan Katz (@BarstoolBigCat), TWITTER (Oct. 2, 2021, 1:41 PM),

https://twitter.com/BarstoolBigCat/status/1444356817136594949 (providing joking

commentary about gamblers who bet a certain way, but making no explicit reference to

Barstool Sportsbook or the problem gambling hotline).

185. See generally Barstool Pick Em, BARSTOOL SPORTS, https://www.barstoolsports.com

/shows/91/barstool-pick-em (last visited May 10, 2022).

186. Id.

187. Emphasizing that as gambling has become their priority, several of Barstool’s

main cast have relocated from New York to Philadelphia, where sports betting is legal. See

Richard Rys, Barstool Sports is Betting Big on Philly. But Are We the City They Think We Are?,

PHILA. MAG. (Jan. 23, 2021, 9:00 PM), https://www.phillymag.com/news/2021

/01/23/barstool-sports-dave-portnoy-philadelphia/; see also Chris Murphy, Penn National

Gaming Lauds Positive Impact of Barstool Sportsbook in Q1 Trading Statement, SBC AMS. (May 6,

2021), https://sbcamericas.com/2021/05/06/penn-national-gaming-lauds-positive-impa

ct-of-barstool-sportsbook-in-q1-trading-statement/ (showing how beneficial Barstool’s

brand is to the promotion of Penn National Gaming sportsbooks).

188. See generally Barstool Sports (@barstoolsports), INSTAGRAM, https://www.instagram.com

/barstoolsports/ (last visited May 10, 2022) (Barstool Sports main account).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

414 ADMINISTRATIVE LAW REVIEW [74:2

Penn National Gaming will likely soon own a majority stake in Barstool,

189

the FTC should formally recognize that all of Barstool’s content acts as a

funnel to the sports betting operation run in conjunction with Penn National

Gaming. Barstool intentionally conditions followers into developing

parasocial relationships with the brand, so that—along with purchasing

other merchandise—they gamble with Barstool Sportsbook. The

Commission should, accordingly, establish content regulations for gambling

firms and company personnel on social media and any other entertainment

ventures that gambling firms engage in.

Even though the FTC does regulate social media influencing, the

Commission has other primary goals and functions, including enforcement

against unfair or deceptive advertising.

190

The central premise behind FTC

enforcement against false advertising is that some advertisements are blatantly

false and misleading, hurting consumers and business competitors alike.

191

When a company’s advertising contains objectively false messaging, the

Commission can easily identify and act against it.

192

The Lanham Act, which

covers trademark infringement and false advertising, allows private parties to

bring suit against the use of product features, descriptions of origin, or false or

misleading representations, which, “in commercial advertising or promotion,

misrepresents the nature . . . of his or her or another person’s goods, services,

or commercial activities.”

193

However, due to limited resources, the FTC

primarily focuses on “outright scams and on situations in which no single

competitor suffers so greatly that it has an incentive to sue.”

194

But what does the Commission do with advertisements that are not

objectively false? One example of potentially false and misleading

advertising that the FTC seeks to continue observing is the growing video

game microtransaction industry, specifically, what are known as “loot

boxes.”

195

Loot box transactions essentially allow players to pay real money

to purchase slot machine-type spins of chance to unlock desirable, but often

189. Kafka, supra note 100.

190. See Michael A. Carrier & Rebecca Tushnet, An Antitrust Framework for False Advertising,

106 IOWA L. REV. 1841, 1847 (2021) (describing the FTC’s primary motives behind its

regulation of advertising).

191. Id. at 1847 (“The goal of false advertising law is to protect consumers and

competitors from . . . deception.”).

192. Id. at 1857–58.

193. See Lanham Act § 43(a)(1)(B), 15 U.S.C. § 1125(a)(1)(B).

194. Carrier & Tushnet, supra note 190, at 1847 (discussing various perspectives on how

and why the FTC does and does not regulate certain advertisements).

195. Benjamin Pu, What are Loot Boxes? FTC Will Investigate $30B Video Game Industry, NBC

NEWS (Nov. 28, 2018, 2:27 PM), https://www.nbcnews.com/tech/tech-news/loot-boxes-

gambling-video-games-ftc-look-it-n941256.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 415

inconsequential and repetitive game features.

196

In August 2019, the FTC

hosted a workshop with representatives from the video game industry,

consumer advocates, academics, and others “to discuss concerns regarding

the marketing and use of loot boxes and other in-game purchases.”

197

This

working group was particularly concerned about young people making

these purchases, which resemble gambling.

198

For two months after the

workshop, the Commission invited public comments, which reinforced the

findings it published in an August 2020 staff perspective paper.

199

Agency

staff found that, in order to avoid violating Section 5 of the FTC Act, video

games with loot boxes must clearly display accurate odds so that customers

can make informed purchasing decisions.

200

The Commission should use this framework to target misleading

advertisements disseminated by sports gambling firms. For instance,

sportsbooks should be required to present better-detailed explanations of

betting odds in their advertisements. This might discourage potential bettors

from spending significant sums on far-fetched, thoughtless bets that favor

“the house.” Another way the FTC should target misleading sportsbook

advertisements is by prohibiting certain rhetoric in marketing. An

advertisement by WynnBET

201

—featuring a video including personalities Ben

Affleck, Shaquille O’Neal, and Melvin Gregg—serves as an example of arguably

misleading rhetoric by claiming that betting “is a team sport.”

202

The unrealistic

video clip shows Affleck receiving friendly advice from casino gamblers as he

makes his way through the Wynn casino in Las Vegas before placing his bet.

203

Finally, the FTC should prohibit phrases, such as “risk free” from being used to

advertise sports gambling promotions, as these are tantamount to cigarette

companies offering free samples meant to get new customers hooked.

204

196. See id.

197. FTC, Inside the Game: Unlocking the Consumer Issues Surrounding Loot Boxes,

https://www.ftc.gov/news-events/events-calendar/inside-game-unlocking-consumer-issues-

surrounding-loot-boxes (last visited May 10, 2022).

198. Id.

199. FTC, FTC VIDEO GAME LOOT BOX WORKSHOP: STAFF PERSPECTIVE (2020),

https://www.ftc.gov/system/files/documents/reports/staff-perspective-paper-loot-box-

workshop/loot_box_workshop_staff_perspective.pdf.

200. Id. at 4; see also Federal Trade Commission Act § 5, 15 U.S.C. § 45 (2006).

201. WynnBet is the online sportsbook run by Wynn Resorts. WYNNBET, https:/

/www.wynnbet.com/ (last visited May 10, 2022).

202. Id.; see also WYNNBET, Ben Affleck, Shaq, and Melvin Gregg Team Up to Bet on Sports with

WynnBET: Extended Cut, YOUTUBE (Aug. 29, 2021), https://www.youtube.com/watch

?v=IFr0PpY5opo&t=51s.

203. Id.

204. See, e.g., WYNNBET, supra note 202 (displaying a photo of a smiling Shaq on a “Risk Free

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

416 ADMINISTRATIVE LAW REVIEW [74:2

The FTC should also apply its advertisement regulations to marketing that

treats DFS as something other than gambling. The Commission should require

companies like DraftKings and FanDuel to change their rhetoric to fit within

what Americans typically understand as gambling promotions. Furthermore,

DFS advertisements should be required to display the number for the problem

gambling hotline, which they are not yet required to do under the law.

205

This would mirror the labeling requirements that the FTC once imposed upon

cigarette packaging. Currently, FTC advertising regulations play no part in the

cigarette and tobacco issue. The Commission had a role in the regulation of

cigarette advertisements between the passage of the Cigarette Labeling and

Advertising Act (Cigarette Act) of 1966 and its 2009 amendments in the Family

Smoking Prevention and Tobacco Control Act.

206

The Commission’s

responsibilities during its enforcement era were essentially limited to enforcing the

warning label requirements, but it was the primary agency filling that role. The

2009 Act transferred that responsibility to the FDA. However, the FTC may still

bring enforcement actions under its own authorizing statute if an advertising

practice violates both Section 5 of the FTC Act and the Cigarette Act.

207

Under the proposed interagency task force, the FTC would revive its

labeling and disclosure enforcement role and add new, targeted regulations

against misleading rhetoric used in sports gambling advertisements.

208

overcome the burdens imposed by the Central Hudson test, however, FTC

regulators would need to research the effects of advertising, and how the

lack of certain disclosures affects the rates of sports gambling and problem

gambling.

209

That research role would best be filled by an agency with

experience in both public health regulation and advertising, such as the

Bet” promotion); see also Rigotti, Moran, & Weschler, supra note 102, at 138–39, 143 (discussing the

efficacy of offering free samples to young people as a cigarette advertising technique).

205. But cf. FTC, FEDERAL CIGARETTE LABELING AND ADVERTISING ACT, https://www.

ftc.gov/enforcement/statutes/federal-cigarette-labeling-advertising-act (last visited May 10,

2022) (describing the Surgeon General’s Warning label requirement under both the FDA and

FTC’s respective jurisdictions over this issue); Federal Cigarette Labeling & Advertising Act

of 1966, 15 U.S.C. §§ 1331–40.

206. 15 U.S.C. § 1333(c); see also 21 U.S.C. § 387(c).

207. See FTC, supra note 173.

208. See supra notes 170–177 and accompanying text (summarizing the policy and effects

of misleading and deceptive advertisement).

209. See Andrew S. Gollin, Improving the Odds of the Central Hudson Balancing Test: Restricting

Commercial Speech as a Last Resort, 81 MARQ. L. REV. 873, 890 (1998) (citing Edenfield v. Fane, 507

U.S. 761, 771–72 (1993) (holding Florida regulations on in-person solicitations by certified public

accountants unconstitutional under the third prong of the Central Hudson test due to the state having

failed to “offer studies or anecdotal evidence that demonstrates that the regulation directly advances

its interest in protecting potential clients from deception or unscrupulous accountants.”)).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 417

FDA or a cousin agency, that has the expertise to justify advertising

regulations on public health grounds.

B. The Food and Drug Administration—The Correct Agency for a Public

Health Issue?

The FDA currently has the statutory authority to regulate cigarette

advertising and promotion, and it does so under the following broad

categories: event sponsorships,

210

packaging of imported cigarettes and

smokeless tobacco,

211

restrictions on free samples,

212

and warning statement

compliance.

213

One foreseeable issue with including the FDA in a gambling-

focused regulatory framework would be that, fundamentally, the FDA is

primarily concerned with diseases and death experienced by individuals

when dangerous products are used, or when safe products are used

incorrectly. Typically, the “FDA standard of approving ‘safe and effective’

products” guides the Agency’s rulemaking.

214

However, with regard to

cigarettes and tobacco, the FDA understands that “[t]obacco is the only

consumer product regulated by the FDA which causes disease, disability, and

death when used as intended.” This reality led Congress to empower the FDA

to take a public health approach rather than an individualistic one, giving the

Agency broader regulatory powers to mitigate tobacco’s threat to the public.

215

Instead of a determination that cigarettes and tobacco are “safe” to use under

“proper” conditions, the government’s desire to reduce the number of potential

future smokers undergirds the FDA’s regulation of cigarette marketing.

That model accommodates and addresses the reasons why sports

gambling advertisements must be regulated in a similar way. While

individual gamblers might experience addiction and associated ills, the goal

of the FDA—like with cigarettes—can be to protect young people from

gambling and encourage active gamblers to reduce participation or quit.

216

The FDA has experience and supportive caselaw that backs its ability to

implement a reduction-based strategy toward a public health issue related to

marketing. Through passage of the Tobacco Control Act, Congress

authorized the FDA to regulate differently compared to its traditional duties,

allowing it to enforce restrictions on a legal product with inherent dangers.

If the Task Force’s creators determine that the FDA is the wrong agency

210. 21 C.F.R. § 1140.34(c).

211. Id. at § 1140.34(a).

212. 21 C.F.R. § 1140.16(d).

213. 21 C.F.R. § 1143.

214. Implementing the Tobacco Control Act, supra note 47.

215. Id.

216. Id.

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

418 ADMINISTRATIVE LAW REVIEW [74:2

for regulating gambling advertisements, several other sub-agencies within

HHS could take up the mantle for research and enforcement.

217

For

example, the Substance Abuse and Mental Health Services Administration

(SAMHSA) is the primary agency responsible for organizing resources and

research for mental health treatment, substance abuse, and suicide

prevention.

218

While some SAMHSA personnel have experience in the

realm of preventing gambling addiction in past positions,

219

the

Administration neither focuses on gambling in any capacity, nor does it

regulate advertising.

220

While the proposed Task Force’s authorizing statute

could solve this problem by giving SAMHSA power to regulate advertising

and gambling, it seems more prudent to include a public health agency with

experience in at least one of those issues in the Task Force. Including both

the FDA and SAMHSA, among others, might be the best option.

C. The Federal Communications Commission—Ending the TV Onslaught

The last necessary Task Force agency, the Federal Communications

Commission, would play an indispensable role in the regulation of sports

gambling advertisements on television and radio. Most federal regulations

with any relation to television or radio broadcasts come under FCC

jurisdiction.

221

In terms of the FCC’s current regulatory authority over

cigarettes, it is the agency keeping cigarette advertisements off the air.

222

Enforcing a complete prohibition on tobacco advertising is the complete

extent of the FCC’s rule. “Federal law prohibits the airing of advertising for

cigarettes” and most other tobacco products “on radio, TV, or any other

217. See HHS Agencies & Offices, DEP’T HEALTH & HUM. SERVS., https://www.hhs.gov

/about/agencies/hhs-agencies-and-offices/index.html (last visited May 10, 2022) (listing the

different sub-agencies under HHS).

218. See generally SAMHSA, https://www.samhsa.gov/ (last visited May 10, 2022).

219. See, e.g., Profile of SAMHSA Regional Administrator David A. Dickinson, MA, SAMSHA,

https://www.samhsa.gov/about-us/who-we-are/leadership/biographies/david-dickinson

(last visited May 10, 2022) (explaining Dickinson’s past background in working on a program

to address gambling addiction in Kansas)).

220. See generally SAMHSA Strategic Plan FY2019-2023, SAMSHA, https://www.sam

hsa.gov/sites/default/files/samhsa_strategic_plan_fy19-fy23_final-508.pdf (last visited

May 10, 2022).

221. See What We Do, FCC, https://www.fcc.gov/about-fcc/what-we-do (last visited

May 10, 2022) (noting FCC’s regulation and authority over radio, television, cable, satellite,

and wire communications).

222. See FCC, MEDIA BUREAU, THE PUBLIC AND BROADCASTING: HOW TO GET THE

MOST SERVICE FROM YOUR LOCAL STATION 24–25 (2019), https://www.fcc.gov/sites/

default/files/public-and-broadcasting.pdf (summarizing the FCC’s advertisement

regulations).

74.2 EISENSHTADT_FINAL.DOCX (DO NOT DELETE) 6/5/2022 9:16 PM

2022] BETTING ON OVERSIGHT 419

medium of electronic communication under the FCC’s jurisdiction.”

223

Given the legislative foundations of these rules, the FCC could similarly

receive statutory authorization to ban sports gambling advertisements on

regulated broadcasts. The fact remains, however, that reducing gambling

advertising is better than doing nothing, especially considering the roles that

would be given to other Task Force member agencies.

CONCLUSION

Since the Murphy decision in 2018, Congress has done little to address the

advertising crusade to which sports gambling companies have subjected

Americans.

224

With this lack of oversight, the federal government has made

an unwise bet on state and local regulators being able to mobilize the

resources needed to manage the issue. Establishing an Interagency Task

Force on Sports Gambling Marketing will allow federal regulators to build a

framework mirroring the cigarette and tobacco model, with all the research

and resources necessary to create and enforce rules. In doing so, the Task

Force will need to address the challenges associated with modern-day

advertising and commercial speech law, including misleading rhetoric, social

media influencing, and often subtle distinctions between different forms of

sports betting. Delaying regulation will contribute to a nearly inevitable rise

in sports gambling addiction. Lawmakers, therefore, must take immediate

action to prevent gambling companies from irresponsibly using Big

Tobacco’s marketing tactics to fuel a drastic increase in gamblers.

223. Id.

224. See Patrick Moran, Anyone’s Game: Sports-Betting Regulations after Murphy v. NCAA,

CATO INST. CTR. FOR CONST. STUD. LEGAL POL. BULLETIN 1, 5–6 (Mar. 11, 2019)

(explaining how Congress has not done much regarding regulated sports betting since the

2018 Murphy decision, but there has been a push for regulation).