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Notes for "Working at Cross Purposes: The Shift in State Oversight of State Lottery Advertising"
1Crimes and Criminal Procedure, 18 USCS § 1307 (2003)
2Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980), 447 U.S. 557.
3“Arizona Lottery Seeks Corporate Sponsor for Pick 3 Game Declining Sales, Lower Advertising Budget Lead to New Initiative,” Associated Press, June 26, 2001.
4Gross Lottery Receipts for Selected States in 2001 and 2002, National Association of State and Provincial Lotteries, 2003.
5State Lotteries: An Overview: Hearing before the Subcommittee on Intergovernmental Relations of the Senate Committee on Governmental Affairs, 98th Cong. 343 (1984) [Hereinafter Overview] (testimony of Robert L. Mote).
6North American Association of State & Provincial Lotteries (2003), [Hereinafter NASPL] available at http://www.naspl.org/.
7Iris Cohen Selinger, “The Big Lottery Gamble,” Advertising Age, May 10, 1993, 22.
8Patricia McQueen, “Investing in Tomorrow,” International Gaming and Wagering Business, Jan. 1998, 48.
9Ad for Hossier Lottery, supplied by Janna J. Shisler, general counsel to the Hoosier Lottery for the State of Indiana, July 23, 2002.
10Ad for New York State Lottery, supplied by Matthew F. Mansfield, director of advertising and game development, New York Lottery, July 26, 2002.
11Store sign provided by Sam Oliver, director of communications for the Florida Lottery, June 28, 2002.
12“The Lottery Is Under Attack,” Ad Federation of Lincoln, February-March 2000.
13L.B. 1174, (Neb. 2000). Among the various sections of the bill was one specifically targeting lottery advertising: " (b) Promotional advertising shall not contain a representation that a person has won or shall unconditionally be the winner of a lottery game unless (i) such person has actually won a lottery game, (ii) the representation is not false, deceptive, or misleading, and (iii) the lottery prize and its value are clearly and conspicuously disclosed in the representation; and (c) Written disclosures on promotional advertising and informational and educational materials shall be presented in a manner so that such disclosures appear in not less than twenty percent of the largest type size and in a similar font as the remainder of the representation. All promotional advertising and informational and educational materials appearing in broadcast media shall also present the disclosure in an audible manner."
14Steven Walters, “Bid to Cut State Lottery Ads Defeated,” Milwaukee Journal-Sentinel, May 5, 2001, 2B.
15Sandy Theis, “Legislators Won't Gamble on Multistate Lottery; Taft, Officials Seek to Boost Game Profits,” Cleveland Plain Dealer, June 26, 1999, 4B.
16Carolyn Ryan, “Senate Panel Expected to Rap Lottery on Coupons,” Boston Herald, Dec. 30, 1997, 12.
17Greg Hassell, “Lottery Ads Not Always Sure Bet,” Houston Chronicle, Jan. 31, 1996, 1.
18Joe Heaney, “AG Says Lottery Ads are not on the Money,” Boston Globe, Feb. 22, 1995, 12.
19Letter from Alan R.Kesner, State of Wisconsin Assistant Attorney General (Oct. 16, 1995).
20Press Release, James E. Doyle, Wisconsin State Attorney General (July 19, 1991).
21Jim Doyle, 2002 Election web site, available at http://www.doyle2002.com/news/10.4.02.html, accessed May 28, 2003.
22National Coalition Against Legalized Gambling, web site, available at http://www.ncalg.org/.
23National Gambling Impact Study Commission Report [hereinafter NGISCR], National Gambling Impact Study Commission, (1999), Washington, D.C., 2-3.
24Tim Triplett, “Marketers Eager to Fill Demand for Gambling,” Marketing News, June 6, 1994, 2.
25For instance, Public Gaming Research Institute suggests on its web site that “With more than 25 years of broad-based lottery experience, PGRI is uniquely qualified to offer this service [marketing] to all companies with an interest in this growing industry.” http://www.publicgaming.org/inasoflotsup.html, accessed March 31, 2004.
26In Public Gaming Magazine, http://www.publicgaming.org/noname1.html, accessed March 31, 2004.
27Overview, 401-446.
28“Gambling Everywhere? It's a Sure Thing,” CNN Online, June 15, 1999, available at http://www.cnn.com/US/9906/15/gambling/index.html.
29Marlon Manuel, “Lottery Foes Bcking Odds in S. Carolina; Polls Show 60 Percent Support, but Opponents Are Taking Heart from the Results of Alabama's Vote,” Atlanta Journal and Constitution, Aug. 14, 2000, 3A.
30Sue Anne Pressley, “Lottery Fight Has It All: Politics, Religion, Money; South Carolinians Look Next Door with Envy, or Disgust,” Washington Post, Oct. 21, 2000, A3.
31Clayton Bellamy, “Short on Cash, States Turn to Lotteries,” The Charlotte Observer, Mar. 16, 2004.
32“Attorney General Bombarded With Lottery Calls,” Lotteryinsider.com, available at http://www.lotteryinsider.com.au/lottery/ntdakota.htm, accessed May 12, 2004.
33“Lottery Bill Heads to Joint Committee,” Lotteryinsider.com, available at http://www.lotteryinsider.com.au/lottery/tennessee.htm, accessed May 13, 2004.
34“Arkansas, Mississippi, and Oklahoma,” Lotteryinsider.com, available at http://www.lotteryinsider.com.au/lottery/index.htm, accessed November 18, 2003.
35NGISCR. The nine recommendations focused on the location of automated teller machines near gambling areas, increased efforts to prevent adolescent gambling, the positive impact of gambling in economically depressed areas, and education of youth as to the negative aspects of gambling.
36NGISCR. The material in the report is taken from Charles T. Clotfelter and Philip J. Cook, Selling Hope: State Lotteries in America (Harvard Press 1989). The authors note that “the practice that has raised the most objection is the lotteries’ presentation of odds.” They found, in the 1988 study, that only 20 percent of ads contained any information on the odds of winning. Clotfelter and Cook, 200.
37The 1995 study was not followed by publishing due to circumstances out of the author’s control. When the author was able to pick up on the research path in 2003, the immediate concern was to merely replicate the methodology with little expectation of any changes in the results. However, the results collected in presented a significant shift in attorney general oversight making inclusion of the 1995 study necessary.
38No attempt will be made in this paper to determine if any lottery advertising is deceptive, beyond the concerns raised by policy actors already cited.. Such a content analysis, while no doubt profitable, is beyond the scope of this paper.
39Letter from Brenda Quenneville, Administrative Secretary, Office of the Attorney General, State of Vermont (Oct. 2, 1995).
40Letter from Public Inquiry Unit, Attorney General’s Office (unsigned), State of California, Department of Justice (Oct. 24, 2002).
41Letter from David G. High, deputy attorney general, State of Idaho (Oct. 26, 1995). Letter from Janice N. Skipper, assistant corporation counsel, Government of the District of Columbia (Oct. 17, 1995). Letter from Robert M. Raymer, analyst, Public Inquiry Unit, Department of Justice, State of California (Oct. 3, 1995).Letter from Michael F. McTaggart, deputy attorney general, State of Delaware (Oct. 13, 1995). Letter from Stephen J. Ledet, assistant attorney general, State of Louisiana (Nov. 17, 1995). Letter from Virginia E. Haines, executive director, Division of State Lottery, State of New Jersey (Oct. 25, 1995).
42High, supra note 51.
43Haines, supra note 51.
44Ledet, supra note 51.
45Letter from LaDonna K. Ockinga, assistant attorney general, State of Arizona (Dec. 17, 2002). Letter from Maurice G. Knaizer, deputy attorney general, State of Colorado (Dec. 2, 2002). Letter from Kriss J. Bivens, constituent information specialist, State of Idaho (Oct. 4, 2002). Letter from Karen Steele, assistant attorney general, State of Illinois (Sept. 16, 2002). E-mail from Rhonda Burris, administrative assistant, Office of the Attorney General, State of Indiana (Jan. 13, 2003). Letter from Stephen J. Ledet, assistant attorney general, State of Louisiana (Feb. 9, 2003). Letter from Michelle M. Robert, assistant attorney general, State of Maine (Sept. 27, 2002). Letter from Laura F. Davies Tilly, assistant attorney general, State of Maryland (Sept. 17, 2002). Letter from Jennifer M. Granholm, attorney general, State of Michigan (Nov. 8, 2002). Letter from Mike Hatch, attorney general, State of Minnesota (Sept. 10, 2002). Letter from Wynn E, Arnold, senior assistant attorney general, State of New Hampshire (Dec. 19, 2002). E-mail from Richard Rifkin, attorney general, State of New York (Feb. 26, 2003). Letter from Marlene M. Jablonka, director of constituent services, State of Ohio (Dec. 23, 2002). Letter from Johanna Matanich, assistant attorney general, State of Oregon (Oct. 25, 2002). Letter from William H. Rice, assistant attorney general, State of Vermont (Nov. 20, 2002). Letter from Meredith Wright Morton, senior counsel, attorney general of Washington (Dec. 5, 2002). Letter from Frances A. Hughes, chief deputy attorney general, State of West Virginia (Feb. 24, 2003). Letter from Peggy A. Lautenschlager, attorney general, State of Wisconsin (Mar. 5, 2002).
46Burris.
47Granholm
48Section 24-35-213, C.R.S. (2002)
49Knaizer.
50Letter from Maurice G. Knaizer, deputy attorney general, State of Colorado (Oct. 6, 1995). Letter from Richard E. Doran, assistant deputy attorney general, State of Florida (Oct. 6, 1995). Letter from Maribeth Kijowski, Constituent Liaison, Office of Attorney General, State of Illinois (Oct. 6, 1995). Letter from Anne P. Mullin, deputy attorney general, State of Indiana (Dec. 27, 1995). Letter from Frank J. Kelley, attorney general, State of Michigan (Dec. 21, 1995). Letter from E. Joseph Hosmer, deputy chief of staff, attorney general of Missouri (Oct. 26, 1995). Letter from Chris D. Tweeten, chief deputy attorney general, State of Montana, Letter, Oct. 3, 1995). Letter from L. Jay Bartel, assistant attorney general, State of Nebraska (Oct. 11, 1995). Letter from Donald P. Berens, Jr., deputy attorney general, State of New York (Nov. 15, 1995). Letter from David J. DeVries, chief deputy attorney general, Commonwealth of Pennsylvania (Nov. 8, 1995). Letter from Lisa Dinerman, special assistant attorney general, State of Rhode Island and Providence Plantations (Nov. 8, 1995). Letter from Mark W. Barnett, attorney general, State of South Dakota (Nov. 13, 1995). Letter from Donald R. Ferguson, assistant attorney general, Commonwealth of Virginia (Oct. 11, 1995). Letter from Deborah L. McHenry, managing deputy attorney general, State of West Virginia (Oct. 6, 1995).
51Dinerman.
52Letter to Sandra G. Arenas, assistant attorney general, State of Connecticut (Dec. 6, 2002). Letter to Michael F. McTaggart, deputy attorney general, State of Delaware (Sept. 23, 2002). Letter to Stephen B. Lyons, senior counsel, Government of the District of Columbia (Dec. 2, 2002). Letter to Shereen M. Walls, assistant attorney general, State of Georgia (Sept. 30, 2002). Letter to John A. Topa, senior assistant attorney general, State of Florida (Sept. 6, 2002). Letter to Andrew Anderson, assistant attorney general, State of Iowa (Sep. 12, 2002). Letter to Jennifer L. Carrico, assistant attorney general, Commonwealth of Kentucky (Dec. 2, 2002). Letter to Diana L. Lawton, managing attorney, Commonwealth of Massachusetts (Sept. 24, 2002). Letter to Malcolm Buxton, attorney general’s office, State of Missouri (Sept. 12, 2002). Letter to Mike McGrath, attorney general, State of Montana (Dec. 11, 2002). Letter to L. Jay Bartel, assistant attorney general, State of Nebraska (Sept. 11, 2002). Letter to David Dembe, senior deputy attorney general, State of New Jersey (Sept. 19, 2002). Letter to La Verne Roller, administrative assistant, attorney general of New Mexico (Jan. 7, 2003). Letter to David J. DeVries, chief deputy attorney general, Commonwealth of Pennsylvania (Sept. 9, 2002). James R. Lee, chief, Civil Division, Department of Attorney General, State of Rhode Island and Providence Plantations (Sept. 16, 2002). Letter to Lee Teed, director, Constituent Services, Office of the Attorney General, State of South Carolina (Sept. 18, 2002). Letter to Jeffrey P. Hallem, assistant attorney general, State of South Dakota (Dec. 31, 2002). Letter to Ross A. Smith, Public Information & Assistance, Office of the Attorney General of Texas, State of Texas (Sept. 13, 2002). Letter to Teresa C. Griggs, senior assistant attorney general, Commonwealth of Virginia (Sept. 24, 2002).
53Lee.
54Arenas.
55Letter from Elizabeth A. Nelson, assistant attorney general, state of Iowa (Nov. 9, 1995). Letter from Carl M. Anderson, assistant attorney general, State of Kansas (Oct. 27, 1995). Letter from Andrea D. Johnson, principal counsel, Maryland State Lottery Agency (Oct. 18, 1995). Letter from Wynn E. Arnold, assistant attorney general, State of New Hampshire (Oct. 11, 1995).
56Nelson.
57Iowa Code Section 99E.9(3)(m) (1995)
58Anderson.
59Johnson.
60Arnold.
61Letter from John D. MacDonald, director, Government affairs, State of Arizona (Nov. 7, 1995). Letter from Hubert H. Humphrey III, attorney general, State of Minnesota (Oct. 16, 1995). Letter from Kathleen G. Weiss, chief legal counsel, Ohio Lottery Commission (Oct. 13, 1995). Alan R. Kesner, assistant attorney general, State of Wisconsin (Oct. 16, 1995).
62MacDonald.
63Ibid.
64Ibid.
65Mike Padgett, "Woods Calls Lottery Ads Deceptive," Phoenix Gazette, April 18, 1991, A-1.
66Humphrey.
67Bench & Bar of Minnesota, available at http://www2.mnbar.org/benchandbar/1999/nov99/internet.htm.
68Mark Eckenwiler, “States Get Entangled in the Web,” Legal Times, Jan. 22, 1996, S35.
69Minnesota State Lottery, 1994 ed., Chapter 349a.09, text provided by the Office of Revisor of Statutes.
70Weiss.
71Doyle.
72Notably, New Hampshire established its state lottery in 1964, and New York and New Jersey later that decade (National Association of State and Provincial Lotteries, http://www.naspl.org/history, accessed August 13, 2004). However, LexisNexis did not start operations until 1973 (LexisNexis), http://www.lexisnexis.com.er.lib.ksu.edu/anniversary/, accessed August 13, 2003). It is unlikely substantial legislative discussion occurred in or legal action was brought against the three state lotteries. No mention of such action was found in any research nor was mentioned by the state lottery officials in each of these states.
73The distinctions between a legal game of chance and a lottery are not seminal to this research. However, simply put, legal games, often used in promotions, are governed by a set of rules that suggest that to be a game, rather than a lottery, there must be no payment made (consideration) to participate or that the chance of winning involves some degree of skill (as in an essay contest). Dean F. Fueroghne, Law & Advertising: Current Legal Issues for Agencies, Advertisers and Attorneys, (The Copy Workshop 1995) 310.
74“33 Attorneys General Research Settlement with Reader’s Digest,” NAAG web site (2001), available at http://www.naag.org/features/readersdigest.php; “Forty-Eight Attorneys General and the District of Columbia Settle Sweepstakes Fraud Claims with USPE For $30 Million,” NAAG web site (2001), available at http://www.naag.org/features/sweepstakes.php.
75This was the earliest opinion found through the Lexis search. The search terms employed were “state lottery and (advertising or promotion or advertise).”
761988 Kan. AG Lexis 107
771984 N.H. AG Lexis 149
781988 Fla AG Lexis 26; 1988 Op. Atty Gen. Fla 94
791992 Kan AG Lexis 76
801995 Md. AG Lexis 54
811987 Mo. AG Lexis 23, withdrawn December 14, 1989
821985 Ore. AG Lexis 108
831977 Mo. AG Lexis 73
841969 Va. AG Lexis 61 ; 1969-1970 Op. Atty Gen. Va. 165
851986 Ohio AG Lexis 24
861990 Mich. AG Lexis 41
871993 Kan. AG Lexis 112
881990 Mich. AG Lexis 19
89See Appendix A
90Wisc. Stats. 565.32 (2002).
91Letter from Edward R.Scroggins, executive director of Missouri Lottery (April 30, 2003).
9216 C.F.R. 309.2 (2003). "…any sweepstakes, including games of chance, shall clearly and conspicuously disclose in the advertisement the odds of being able to receive the prize, award, service, or product …" The FTC defines sweepstakes as "a game or promotional mechanism that involves the elements of a prize and chance and does not require consideration."
93However, unlike a state’s toll booth authority or welfare agency, the lottery department would be responsible for producing and airing millions of dollars in advertising.
94Interview, Apr. 2, 1999, Lee Peeler, director of the FTC Division of Advertising Practices at FTC offices in Washington, D.C.
95FTC Commissioner Orson Swindle, "The Mailing of Deceptive Materials Relating to Games of Chance,” before the Subcommittee on the Postal Service of the Committee on Government Reform United States House of Representatives, Washington, D.C., August 4, 1999
96Tom Carter, “Putting Prize Promotions Into Perspective,” Consumer Features, Federal Trade Commission web site, http://www.ftc.gov/bcp/conline/features/prizes.htm, accessed August 13, 2004.
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