Come on Barbie, Let’s go Gamble: Is gambling advertising allowed in a Barbie world?

By: Abbey Block

By now, you’ve probably heard that the film Barbie has been a smash hit. Since opening on July 21, 2023, the film has drawn in huge audiences and earned hundreds of millions of dollars. Much of the film’s success has been attributed to a diligent and far-reaching marketing campaign. The film has partnered with several widely known brands such as Target, Airbnb, Burger King, and Progressive Insurance to promote the blockbuster.

Quick to jump onboard the Barbie-marketing train was Circa Resort and Casino in Las Vegas, Nevada. From July 18^th to July 23^rd the Resort glowed Barbie pink in honor of the newly released movie. The resort also offered several Barbie-themed events, including a Barbie pool party featuring pink lighting, B-shaped inflatables, Barbie-inspired cocktails, and life-size Barbie doll boxes for patrons to use for photo ops.

While other branding partnerships have been widely embraced – Barbie’s partnership with the Circa Resort and Casino has raised a few eyebrows. Of particular concern is the fact that Barbie – an iconic children’s toy – is being used to promote an activity from which children and teens are intentionally excluded – gambling.

This isn’t the first time a children’s brand has been used to promote “adult” activities. For example, in 2022 the Pennsylvania Lottery promoted an “Addams Family” scratch off game whereby players scratched off a cartoon image to reveal their potential prize. Similarly, J.R. Reynolds Tobacco Company used a cartoon camel named “Mr. Camel” to promote its cigarettes for nine years.

However, in recent years, regulators have begun to crack down on the use of kid-friendly brands and images to advertise decidedly adult-only brands. The regulation of gambling advertisements has been particularly strict across the pond.  For example, in 2019, the Advertising Standards Authority, UK’s independent regulator of advertising, banned an advertisement for a Monopoly-themed online casino game, based on concerns that the board game’s cartoon mascot might appeal to children.

American regulators and law makers have also begun to take steps to regulate the advertisement of gambling. In April of 2023 the Massachusetts Gaming Commission implemented new regulations that prohibit “advertising, marketing, branding, and other promotional materials,” that “contain images, symbols, celebrity or entertainer endorsements, or language designed to appeal primarily to individuals younger than 21 years old.”[1] Going even farther, in February of 2023 New York Congressman Paul Tonko introduced the “Betting on Our Future Act” –legislation that would ban all online and electronic advertising of sports gambling.

However, in America, the governmental desire to regulate gambling advertisements must be balanced against the First Amendment protection generally provided to commercial speech that (1) advertises legal conduct; and (2) is not misleading. Restrictions on commercial speech are generally governed by a four-part test provided by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York.[2] For commercial speech to be protected under the First Amendment (1) the speech must “concern lawful activity and not be misleading[;]” (2) the asserted government interest must be substantial; (3) the regulation must directly advance the governmental interest asserted; and (4) the regulation must be no more extensive than necessary to serve that purpose.[3]

The Supreme Court has considered the scope of First Amendment protection to be provided to the advertisement of “adult” products, such as cigarette ads, that may reach and be viewed by children. For example, in Lorillard Tobacco Co. v. Reilly, the Supreme Court concluded that certain regulations targeting specific cigarette advertising and sales practices violated the First Amendment.[4] In that case, cigarette manufacturers and sellers challenged a Massachusetts regulation that prohibited the outdoor advertising of tobacco products within 1,000 feet of a school or playground.[5] The Court concluded that although the Government had a compelling interest in preventing the underage use of tobacco, the regulations failed to satisfy the fourth element of the Central Hudson test which requires a “reasonable fit between the means and the ends of the regulatory scheme.”[6] In reaching this conclusion, the Court explained,

The State’s interest in preventing underage tobacco use is substantial, and even compelling, but it is no less true that the sale and use of tobacco products by adults is a legal activity. We must consider that tobacco retailers and manufacturers have an interest in conveying truthful information about their products to adults, and adults have a corresponding interest in receiving truthful information about tobacco products.[7]

The Court’s decision in Lorillard embraces the principle that the Government’s interest in protecting children from the advertisement of potentially harmful activities/products “does not justify an unnecessarily broad suppression of speech addressed to adults.”[8] Given these protections, it seems likely that regulations, such as those implemented by Massachusetts, are more likely to survive judicial scrutiny that the outright ban on sports betting advertising proposed by Congressman Tonko.

Perhaps recognizing the trend toward regulation, several players in the gaming industry have voluntarily implemented guidelines to regulate gambling advertisements. In May of 2023, iDEA Growth, an organization comprised of members of the online gaming and sports betting entertainment industry, published its “Responsible Advertising Code.” Under the Code, members of the organization pledged to promote “sports betting and online gaming only to those over the age of 21 (unless the state law is 18+).” To that end, the Code requires the following:

• Advertising should disclose that betting is only for adults 21 years or older (unless applicable state law permits 18+).
• Marketing should not use characters and/or performers (including endorsers and influencers) who primarily appeal to audiences under legal gaming age.
• Sports wagering and online gaming advertising (including company logos) should not appear on media that primarily appeal to an audience under legal gaming age, such as children’s television programming and social networks geared toward youth.
• Promotional products should not be those that typically appeal to children.

Perhaps by voluntarily adopting these regulations, operators and others in the industry are attempting to avoid the imposition of stricter, mandatory regulations by government regulators or congress.

So where does all of this leave Circa’s Barbie pink marketing campaign? Some may argue that casinos should never use brands that could potentially appeal to children to advertise gambling or gambling-related products. Indeed, at first glance, it may seem that the Casino’s promotion of Barbie wouldn’t comply with the general principle that gambling advertisements shouldn’t utilize characters that primarily appeal to audiences under 21. However, the particularities of Circa’s Barbie campaign signal that the Casino’s marketing schtick may comport with responsible advertising principles after all.

As an initial matter, Circa is an adults-only casino and resort. This means that all of its Barbie-themed events are targeted toward and can be attended only by adults over twenty-one. The fact that a child may merely see the building’s pink façade should not be dispositive as to the appropriateness of the campaign.  Additionally, the marketing campaign does not primarily rely on the image of a Barbie doll or cartoon – both of which are more likely to appeal to children than just the use of the Barbie Movie’s logo.  Finally, the Barbie film itself is deliberately not for children. The film features adult language, themes, and puns and is rated PG-13. Thus, although the iconic Barbie doll is a toy for children, this marketing campaign is targeted toward adults who will eventually go see the movie. Given these circumstances, it seems that Circa’s marketing should be permitted – provided that it takes place in an adults-only Barbie world.

[1]205 C.M.R. § 256.05.

[2] 447 U.S. 557, 566 (1980).

[3] Id.

[4] 533 U.S. 525 (2001).

[5] Id. at 532-33, 536.

[6] Id. at 561.

[7] Id. at 564.

[8] Id. (internal quotation marks omitted) (quoting Reno v. American Civil Liberties Union, 521 U.S. 844, 875 (1997)).