N.Y. Comp. Codes R. & Regs. tit. 9 § 5329.37

Current through Register Vol. 46, No. 45, November 2, 2024

Section 5329.37 - Advertising, marketing and promotions

(a) Advertisements generally.

(1) Advertisements and promotions used by a casino sports wagering licensee or sports pool vendor shall comply with Racing, Pari-Mutuel Wagering and Breeding Law section 1363 and comply with the responsible gaming requirements set forth in section 5325.6 of this Subchapter.

(2) Advertisements and promotions used by a casino sports wagering licensee or sports pool vendor shall disclose the identity of the casino sports wagering licensee or sports pool vendor.

(3) Each casino sports wagering licensee or sports pool vendor shall be responsible for the content and conduct of any and all advertising, marketing or branding done on its behalf or to its benefit, whether conducted by such licensee, an employee or agent of such licensee, or an affiliated entity of agent of such licensee pursuant to contract or agreement.

(4) No person who, or entity that, is not a casino sports wagering licensee or sports pool vendor shall advertise sports gambling in the State, unless the advertisement disclaims conspicuously that the wagering offerings are not available in the State.

(5) No person or entity shall advertise forms of illegal gambling in the State, unless the advertisement disclaims conspicuously that the wagering offerings are not available in the State.

(6) No casino sports wagering licensee or sports pool vendor may enter into an agreement with an affiliate marketing partner when the manner of compensation for such services is prohibited by Racing, Pari-Mutuel Wagering and Breeding Law section 1341(1).

(b) False, deceptive or misleading statements.

(1) No advertisement or promotion for sports wagering, including any material published or disseminated by an affiliate marketing partner, shall contain false, deceptive or misleading statements or elements, including, without limitation, those concerning:

(i) chances of winning;

(ii) the number of winners; or

(iii) the rules, terms or conditions of wagering. A false, deceptive or misleading statement or element includes, without limitation, one that reasonably would be expected to confuse or mislead patrons in order to induce them to engage in sports wagering.

(2) A casino sports wagering licensee or sports pool vendor shall not, directly or indirectly (such as through an affiliate marketing partner):

(i) promote irresponsible or excessive participation in sports wagering;

(ii) suggest that social, financial or personal success is guaranteed by engaging in sports wagering;

(iii) imply or promote sports wagering as free of risk in general or in connection with a particular promotion or sports wagering offer;

(iv) describe sports wagering as 'free', 'cost free' or 'free of risk' if the patron needs to incur any loss or risk the patron's own money to use or withdraw winnings from the wager;

(v) encourage patrons to 'chase' losses or re-invest winnings;

(vi) suggest that betting is a means of solving or escaping from financial, personal, or professional problems;

(vii) portray, suggest, condone or encourage sports wagering behavior as a rite of passage or signifier of reaching adulthood or other milestones;

(viii) portray, suggest, condone or encourage sports wagering behavior that is socially irresponsible or could lead to financial, social or emotional harm;

(ix) state or imply that the chances of winning increase with increased time spent on sports wagering or increased money wagered; or

(x) be placed on any website or printed page or medium devoted primarily to responsible gaming.

(3) A casino sports wagering licensee, sports pool vendor, or affiliate marketing partner, shall not use misleading embedded keywords or similar methods in its platform to:

(i) attract persons under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1), self-excluded contestants or persons who are or may be problem gamblers; or

(ii) accomplish any other misleading or deceptive purpose.

(4) Each affiliate marketing partner shall disclose in its media, in a reasonably prominent manner (e.g., after a writer's byline, after editorial content, in an 'about' link on a webpage that is accessible from the page on which editorial content appears), whether such affiliate marketing partner has agreed to promote, refer potential customers to, or conduct advertising, marketing or branding on behalf of, or to the benefit of, one or more casino sports wagering licensees or sports pool vendors. Each casino sports wagering licensee or sports pool vendor shall cause each of its affiliate marketing partners to comply with this paragraph.

(c) Marketing and promotions.

(1) In connection with the marketing, promoting, advertising or offering of any promotion or displaying or offering of such on a casino sports wagering licensee's or sports pool vendor's platform or platforms, or on any platform or platforms over which a casino sports wagering licensee or sports pool vendor exercises actual or constructive control, such licensee shall:

(i) clearly and conspicuously disclose material facts, terms and conditions of the promotion to potential contestants and adhere to such terms;

(ii) clearly and conspicuously disclose to consumers material limitations to the promotion;

(iii) obtain express informed consent from any consumer who must deposit money to take advantage of the promotion; and

(iv) if an offer requires a patron to wager a specific dollar amount to receive the complimentary item or promotional credit, the amount that the patron is required to wager of the patron's own funds shall be disclosed in the same size and style of font as the amount of the complimentary item or promotional credit, and the complimentary item or promotional credit shall not be described as free.

(2) No casino sports wagering licensee or sports pool vendor, or any employee, agent or vendor thereof, shall advise or encourage individual patrons to place a specific wager of any specific type, kind, subject or amount. The prohibition in this paragraph shall not apply to general advertising or promotional activities.

(3) Each direct advertisement of sports wagering shall clearly and conspicuously describe a method by which an individual may opt out of receiving future direct advertisements. Any request to opt out must be accomplished as soon as practicable and, in any event, no later than 15 days from the date of such request. If a direct advertisement is sent via electronic mail, the described opt-out method must include either an electronic mail address that will accomplish such opt-out or a link to an online website address at which such opt-out may be accomplished as simply as practicable. A direct advertisement sent other than by electronic mail shall include at least one of the following methods to opt out:

(i) telephone;

(ii) regular United States mail;

(iii) online website address or mobile application at which such opt-out may be accomplished as simply as practicable; or

(iv) electronic mail.

For purposes of this paragraph, the term direct advertisement is limited to mean an advertisement sent by a casino sports wagering licensee or sports pool vendor and delivered via electronic mail, United States mail or telephonic means (including text messages) directly to patrons or potential patrons, but such term shall not include online advertisements appearing on or in websites, social media, broadcasting, telecasting or other media not specifically described in this paragraph.

(d) Federal rules. A casino sports wagering licensee or sports pool vendor shall follow all rules concerning endorsements, including, without limitation, rules of the Federal Trade Commission.

(e) Marketing to underage persons. A casino sports wagering licensee or sports pool vendor shall not allow, conduct or participate in any advertising, marketing or branding for sports wagering that is aimed at persons under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1).

(1) Design. No sports wagering message shall be designed to appeal primarily to those below the legal age for sports wagering by depicting cartoon characters or by featuring entertainers or music that appeal primarily to audiences under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1), nor should any message suggest or imply that persons under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1) engage in sports wagering.

(2) Composition of audience. Sports wagering advertising and marketing shall not be placed in broadcast, cable, radio, print or digital communications where the reasonably foreseeable percentage of the composition of the audience that is persons under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1) is greater than the percentage of the population in the State that is under such age, such population as measured by the most recent completed decennial census.

(3) Use of logos, trademarks and brand names. No sports wagering messages, including logos, trademarks or brand names, shall be used or licensed for use on clothing, toys, games or game equipment intended primarily for persons below the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1). To the extent that promotional products carry sports wagering messages or brand information, a sports pool licensee and its employees shall use commercially reasonable efforts to distribute such products only to those who have reached the legal age for sports wagering.

(4) College and university media. Sports wagering shall not be promoted or advertised in college- or university-owned news assets (e.g., school newspapers, radio, telecasts) or advertised on college or university campuses, except that generally available advertising that is not targeted to the area of a college or university campus shall not be prohibited by this paragraph.

(5) Depiction of underage persons. No advertisement for sports wagering shall depict a person under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1); students; schools or colleges; or school or college settings, except where such image may incidentally depict a person under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1) or is an image of a professional athlete during a type of sporting event on which wagering is permitted.

(6) Endorsements. No advertisement for sports wagering shall state or imply an endorsement by a person under the wagering minimum age set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1332(1) (other than professional athletes); college athletes; schools or colleges; or college athletic associations.

(f) Age notices in online content. Websites or profiles owned by a casino sports wagering licensee or sports pool vendor that include sports betting content, including social media pages and sites, shall include a reminder of the legal age for sports wagering in the State.

(g) Retention. A registrant shall maintain records of each television, radio, print, digital or other advertisement for a period of at least four years from the date such advertisement last appears and shall make each such record available to the commission upon request.

(h) Direction to cease. Any person or entity, upon notice from the commission, shall cease, as expeditiously as possible, to offer advertising, marketing or a promotion that violates this section.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 5329.37

Adopted New York State Register October 18, 2023/Volume XLV, Issue 42, eff. 10/18/2023