February 13, 2024
In 2023, the AGCO announced revisions to their standards, which would affect the way in which igaming operators would be able to market their brands within the Ontario market. Originally, these revisions were met with a level of confusion, as some of the rules seemed open for interpretation. If an operator wished to lean to the aggressive side of the rules, and the AGCO leaned conservative on their judgment, this would inevitably lead to punishment for contravening the new standards.
On February 8, 2024, in advance of their February 28, 2024 implementation, the AGCO published guidance in order to more completely explain how operators should be thinking about how they may advertise their product in Ontario. Here are the changes to the Standard below, in italics. We also include the AGCO's clarifications for point #3 with regard to social media influencers or celebrities that might appeal to minors, and clarifications for point #4 with regard to the use of current or former athletes in marketing. Below the update from the AGCO, we discuss how these should impact the current igaming marketing landscape in Ontario.
2.03 – Advertising, marketing materials and communications shall not target high-risk, underage or self-excluded persons to participate in lottery schemes, shall not include underage individuals, and shall not knowingly be communicated or sent to high-risk players. (Also applicable to Gaming-Related Suppliers)
Requirements – At a minimum, materials and communications shall not:
For greater clarity on Requirement 3:
The Standard broadens and strengthens this requirement (which formerly referred to “primary appeal”) by prohibiting the use of those “who would likely be expected to appeal to minors.” It now focuses on the relevant factor: whether an individual is likely expected to appeal to minors. While the AGCO recognizes the fluid nature of individuals’ appeal to different groups, given that public interest and appeal is dynamic, we encourage Registrants to use their judgement to determine whether the individual likely appeals to minors. The AGCO will be looking for Registrants to conduct a credible assessment, using criteria they have established for likely appeal, supported by records and control activities.
There is a broad array of factors that Registrants may consider when establishing their own criteria for assessing likelihood of appeal to minors. Some examples include but are not limited to:
Minors are considered to be those under the legal age for gaming in Ontario (i.e., 19 years of age for casino gaming and sports betting on igaming sites). A number of requirements in the Standard, as well as other Registrar’s Standards, work together to address advertising and marketing obligations to protect minors. The AGCO’s Registrar’s Interim Standards and Requirements for Liquor have similar restrictions. The AGCO also recognizes that potential appeal is dynamic and varies by individual. As such, targeting young adults in advertising and marketing campaigns may carry greater risk of potential appeal to minors and it is expected that Registrants will take extra caution in doing so.
Role models, social media influencers, celebrities and entertainers include those individuals with a degree of notoriety and/or familiarity who may persuade others. The term “social media influencer” includes individuals active on social media who may be known by different terms (e.g., bloggers, streamers, or content creators). The intent is that persons or characters with a public presence that is likely appealing to minors, regardless of the type of individual, should not be used.
While the AGCO is aware that there is interest in a prescriptive definition, such as a minimum number of followers that a person might have, the Registrant’s judgement or assessment needs to focus on an individual’s appeal to minors.
The AGCO is aware that the igaming environment is constantly evolving, as are operator advertising and marketing strategies. We encourage Registrants to take a cautious approach and to assess the risks of using certain individuals.
For greater clarity on Requirement 4:
The Standard is intended to restrict the use of recognized or known, active or retired individual athletes, as they are considered to appeal to minors. The intent of the Standard is to capture individuals who gained notoriety as an athlete.
For greater clarity, ‘athlete’ refers to but is not limited to professional and amateur athletes.
Requirement 4 is intended to address the use of athletes in advertising and marketing materials. Provided that all other requirements of the Standard are met, requirement 4 is not intended to prevent the use of:
Responsible gambling is a central aspect of the regulated igaming market. To that end, the use of athletes, whose influence and appeal extend to a wide audience, remains permitted in advertising and marketing for the exclusive purpose of advocating for responsible gambling practices. For greater clarity, despite the restriction on the use of role models, social media influencers, celebrities, or entertainers who would likely be expected to appeal to minors under requirement 3, the use of athletes who may also be considered to fit within one of these categories is permitted for “the exclusive purpose of advocating for responsible gambling practices” as set out in requirement 4.
Advocating for responsible gambling practices could include but is not limited to, educational content, information on the signs of problem gambling, accessing services, and responsible gambling controls such as voluntary breaks in play, self-exclusion, and financial and time-based limits.
Materials that feature athletes must only be for the “exclusive purpose of advocating for responsible gambling practices”. This means that materials:
All other requirements and standards must be met with respect to any advertising and marketing activities.
With reference to agreements or arrangements made directly or indirectly between an athlete and an operator for advertising and marketing activities (not including those for the exclusive purpose of advocating for responsible gambling practices):
First, the subject of appealing to minors. Based on what we see here, given how young esports tends to skew in terms of audience, essentially no esports streamers or personalities (those that play video games online and self-broadcast on platforms like Twitch, Kick or YouTube) will be available to promote Ontario-licensed igaming operators. Given the intent and wording of the Standard, what esports streamer or personalities could be argued as allowable for marketing purposes? From this corner: none. The AGCO will of course be the final judge, but any operator that uses esports personalities in their marketing is leaving themselves open to fines or worse.
If the operator works in multiple jurisdictions and wishes to continue marketing with their contracted esports personalities, there will be some interesting discussions between the operators and the AGCO over how they may be able to ring-fence such marketing. If a huge name within esports is posted on the gaming company's main social media accounts but not the "Ontario-dedicated" ones, that few people actually subscribe to, is that a successful and genuine implementation of AGCO policy, or is that an end-run that the AGCO will see through? Are operators already looking to bypass the regulations and the spirit with which they have been laid down, or are they happy to sincerely apply them to their business going forward?
Part of this ban is straight-forward. No more marketing of the actual gaming products by current or former athletes. The one exception to this is for the expressed purpose of promoting responsible gambling tools and ideas, where an operator logo may be shown in association. This obviously means that all the ads with current and former athletes will change to suit. If the operators wish to continue using Wayne, Connor, Auston & Georges going forward in their marketing, it will only be to promote RG.
However, there is another major change coming that is perhaps less obvious to see. Several legal Ontario sportsbooks have come to marketing agreements with various media properties, be they TV and radio programs like Overdrive on TSN 1050, or within actual team or league broadcasts. On all of these broadcasts, sponsored by the igaming operator, former athletes, now analysts, provide editorial wagering information, usually in the manner of their chosen "picks" for the game or event at hand. As a result of this change in the AGCO Standard, at the very least, the former athletes should not be able to deliver such editorial content as linked with an igaming sponsor or partner.
However, based on our reading of the AGCO Standard, the changes may be even more severe. We also expect that a sportsbook "title sponsor" or "desk sponsor" may need to completely disappear, if the former athletes are to remain in-situ as on-air analysts or personalities. These operator brands, for marketing purposes, would be indirectly linked to these former athletes in the broadcasts, which is now banned.
In the end, if broadcasters and rights-holders wish to keep their igaming partnership deals for marketing purposes, they will need to get creative. Broader sponsorship deals at the "desk" level will likely need to be scaled back to the "segment" level so as to disassociate the igaming brand from their former athlete analysts. Those that work the sponsored wagering segments, must not appeal to minors, and must not also be or have been notable as athletes.
In the end, knowing how some igaming operators prefer to push the envelope, and see paying fines as a cost of doing business, despite now fairly clear guidance on the matter, we expect several operators to be found out of compliance in the coming year. We can only hope that when it happens, the AGCO hits them hard. There will be no more excuses.
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