PLEASE NOTE text in underlined bold denotes an insertion and text between [brackets] denotes a deletion.

11 VAC 5-70-230         Investigations; Reporting

G. The Director may investigate the possibility of any of the following activities:...

7. Directly targeting sports betting advertisements or promotions [advertising or promoting sports betting] to minors;

DraftKings respectfully requests the above change be made to put the responsibility on the permit holders to not target advertisements or promotions to minors, but clarifies a permit holder should not be held liable if a minor comes across sports betting advertising in the course of normal activities on the internet. Permit holders recognize the responsibility a sports betting permit would bring and will work to ensure advertising will meet regulatory requirements set out by the Department, however we ask that operators be granted some flexibility in the process as has been granted in other regulated sports wagering jurisdictions.

G. 8. Offering or accepting a wager on [amateur or other] sporting events not approved by the Director, including high school and youth league sports events;

DraftKings respectfully requests that the term “amateur or other” be removed from this requirement, as amateur sports are not a prohibited sporting event under Section 58.1-4039 of Article 2 of the Virginia Lottery Act. The remainder of the sentence ensures that wagering can only be offered on sporting events specifically approved by the Director, thus allowing the Director to review and approve only those professional and amateur events where the Director is satisfied as to the integrity of the sport and associated wagering activity.

H. 2. After the preliminary investigation, if the Director concludes that the allegations contained in the report are credible, the Director may [shall] refer the allegations to the appropriate law enforcement agency.

DraftKings respectfully requests the above change be adopted, as not all of the types of investigations outlined in 11 VAC 5-70-230 G may need to be escalated to law enforcement.  For example, as discussed in our comment to 11 VAC 5-70-240 C, the current language regarding advertising to minors is very broad and could capture advertising which unintentionally reached minors.  Under this provision it would be mandatory to refer such instances to law enforcement, regardless of the circumstances surrounding the incident even if minors were not directly targeted.  DraftKings respectfully submits that the regulator should maintain discretion whether to resolve such investigations at the regulatory level or whether they rise to the level regarding law enforcement intervention.

I. A regulated entity shall as soon as commercially reasonable [immediately] report to the Director any information relating to:

DraftKings respectfully requests the above change be adopted to align with the language found in Section 58.1-4044.A of Article 2 of the Virginia Lottery Act, “A permit holder shall, as soon as is commercially reasonable, report to the Department any information relating to…” If this change is not adopted, we respectfully request the term “immediately” be interpreted as a commercially reasonable period of time.

L. A regulated entity shall share with the Director, upon request by the Director, in the form and format required by the Director and in real time and at the account level, information regarding a bettor, amount and type of wager, the time the wager was placed, the location of the wager, including the internet protocol address if applicable, the outcome of the wager, and records of abnormal, unusual, or suspicious wagering activity.

DraftKings respectfully requests clarification around how the Department defines the term “real time” as used in the above provision and asks that it be defined as described in the sports betting law at Section 58.1-4034 D 1, specifically real time be defined as “as soon as is commercially reasonable.”

11 VAC 5-70-240         Advertising and Marketing

A. A permit holder shall maintain and make available upon request [provide] all advertising, marketing, and promotional materials developed by or on behalf of the permit holder by a supplier or vendor to the Director [in advance of publication or dissemination for review and approval in accordance with guidelines issued by the Director].

DraftKings respectfully requests that the requirement that permit holders provide all advertising and marketing materials to the Department for review and approval before publication be amended. Marketing and advertising are important tools for sports betting operators. In order to bring players into the regulated market, thus providing consumer protections for players and revenue for the state, operators need the flexibility to offer strong marketing and advertising campaigns and adapt them as needed.

For example, what is a strong advertisement or promotional offer during week one of the National Football League (NFL) season, may not be an effective advertisement or promotional offer by week four of the NFL season. Something may occur on the field one day and operators will want to run an associated promotion quickly thereafter. Any advertising and marketing requirements implemented by Virginia should therefore allow operators flexibility to adapt their campaigns without requiring express regulatory approval.

If the Department believes review and approval of marketing is necessary for Virginia’s sports betting industry, we respectfully request the Department adopt the model used by New Jersey that limits the review of marketing materials to fact sheets describing the promotion. The New Jersey Division of Gaming Enforcement (NJDGE) requires operators to submit a promo fact sheet to the NJDGE at least 5 days in advance of an offer going live. No affirmative approval is required from the NJDGE for operators to run the offer after the 5-day period expires--operators are free to do so absent contrary guidance from the NJDGE. The NJDGE also does not review all associated advertising assets. This model has helped sports betting operators remain nimble and has played a major role in building New Jersey’s strong sports betting market.

B. A supplier or vendor who advertises, markets, or offers promotions on behalf of more than one permit holder or without affiliation to any permit holder shall maintain and make available upon request [provide] materials to the Director [in advance of publication or dissemination for review and approval in accordance with guidelines issued by the Director].

DraftKings respectfully requests clarification on the types of stakeholders required to provide materials to the Director in advance of publication or dissemination and modification of the requirement that suppliers and vendors provide materials in advance of publication or dissemination for review and approval.

DraftKings further requests clarification as to how the Department intends to capture a scenario where multiple permit holders use one advertising agency for their individual advertising.  It is not clear whether this vendor would have to submit advertisements before publication themselves under this provision, or if those would be submitted by the operators pursuant to 11 VAC 5-70-240 A. There will likely be multiple vendors working with different permit holders and this scenario could be confusing and impractical for permit holders.

Related to our proposed changes amending the requirement to maintain and make the information available upon request, the rationale is similar to the comments we provided to 11 VAC 5-70-240 A.

C. A permit holder may not directly target sports betting advertisements or promotions [advertise or promote sports betting] to minors.

DraftKings respectfully requests the above change be made to clarify permit holders may not target advertisements or promotions to minors, but clarifies a permit holder should not be found liable if a minor comes across sports betting advertising in the course of normal activities on the internet. Operators recognize the responsibility a sports betting permit would bring and will work to ensure advertising will meet regulatory requirements set out by the Department, however we ask that operators be granted some flexibility in the process as has been granted in other regulated sports wagering jurisdictions. These changes are also consistent with our proposed changes to 11 VAC 5-70-230 G 7.

D. Advertising, marketing, and promotional materials shall include a responsible gaming message, which includes, at a minimum, a [the] Director-approved problem gambling helpline number and an assistance and prevention message, except as otherwise permitted by the Director for certain mediums such as social media messages.

DraftKings respectfully requests the minor change above to allow the Director discretion to approve multiple problem gambling helpline numbers and messages. This can be beneficial to permit holders as it will help with national advertisements and also allow flexibility for different mediums where full messages may be hard to display.

H. Advertising, marketing, and promotional materials may not feature anyone who is or appears to be below 21 years old, except for professional athletes who may be minors as laid out in 11 VAC 5-80-150 C 1, or imply that minors may engage in sports betting.

DraftKings respectfully requests the above change be adopted in order to align with 11 VAC 5-80-150 C 1, which allows professional athletes who may be minors to endorse advertisements.

[I. A permit holder may not advertise in a media outlet (including social media) that appeals primarily to those under the age of 21.]

DraftKings respectfully requests the removal of the requirement that permit holders not advertise in media outlets (including social media) that appeal primarily to those under the age of 21. The requirement as written is vague and the intent of prohibiting advertising to minors is already covered by requirements 11 VAC 5-70-240 C, G, and H. Advertising in media outlets, including social media, is an important tool for operators to bring players to, and retain players in, the regulated market. Especially because Virginia’s sports betting market is mobile, it would not make sense to prohibit or restrict advertising on social media. In order to shutter the illegal market, players need to know that a regulated product is available.

[J. Advertisements may not be placed with such intensity and frequency that they represent saturation of that medium or become excessive.]

DraftKings respectfully requests to remove the above requirement because the terms “intensity and frequency,” “saturation” and “excessive” are subjective and do not clearly establish prohibited conduct and adequately inform permit holders of their compliance obligations.  DraftKings respectfully submits that this requirement could constitute a vague and overly broad limit on commercial speech.  

[Q. Advertising, marketing, and promotional materials shall reflect generally accepted contemporary standards of good taste.]

DraftKings respectfully requests the requirement that advertisements shall reflect generally accepted contemporary standards of good taste be removed. The intent of advertising being in “contemporary standards of good taste” is subjective and already covered by requirement 11 VAC 5-70-240(P), which prohibits advertising from containing or implying “lewd or indecent language, images [or] actions.” A reasonable interpretation of contemporary standards of good taste would be advertisements absent lewd or indecent language, images, or actions. For this reason, this provision is redundant, and we request the requirement be removed.