I. Introduction
“Daddy, what’s a cigarette?” This question, recently posed by a nine-year-old, may be the bellwether of social and cultural change around tobacco consumption, not least for what might be described as the first “tobacco control generation.” Over the past two decades, a combination of advertising bans, plain packaging and restrictions on point-of-sale displays have systematically dismantled the mechanisms through which tobacco products were embedded in everyday life. It also raises questions about the potential for transposition of the tobacco control model to other public health-related lifestyle issues, such as gambling.
The WHO Framework Convention on Tobacco Control (“FCTC”) was the first international public health treaty developed by the World Health Organisation and a world-first in tobacco control. Footnote 1 Since it came into effect in 2005, global tobacco use has declined by one third, with “ … [u]p to 5.6 billion people … now covered by at least one tobacco control policy.”Footnote 2 The FCTC is a landmark in public health policy. Not only did it tackle challenges of forging a unified international legal response to a critical public health issue, it also provided a normative framework with cross-border impacts, that addressed both tobacco products themselves and the marketing conditions governing their sale and distribution.Footnote 3 The FCTC has been rapidly and widely adopted and was supplemented in 2012 by a Protocol to Eliminate Illicit Trade in Tobacco Products.Footnote 4 The FCTC is a “living instrument” that is supplemented by non-binding soft law guidelines.Footnote 5 This has enabled the Convention and its parties to respond to market changes and provide additional guidance on emerging issues, including by framing a response to the development of smokeless tobacco products and electronic nicotine delivery systems.Footnote 6
Along with other products for human consumption such as alcohol and ultra-processed foods, tobacco is linked to harmful lifestyle behaviours and closely associated with strategies for minimisation of Non-Communicable Disease (“NCD”).Footnote 7 Consumption of these products exposes individuals to adverse outcomes that generate negative social impacts, impose substantial public health costs, and lead to undesirable personal consequences. These harms include compulsive, urge-driven behaviours that carry considerable health risks for all cohorts, but especially for children.
Like tobacco, gambling is another risky, urge-driven lifestyle choice with serious health, social and economic consequences, while simultaneously representing a lucrative global industry shaped by powerful commercial interests.Footnote 8 As commercial interests, both tobacco and gambling bear many similarities, representing valuable markets characterised by heavily capitalised international commercial undertakings. However, as the Lancet Public Health Commission on Gambling (“the Lancet Study”) recently observed, gambling is not an “ordinary commodity” and it can be distinguished from unhealthy foods, alcohol and tobacco, by factors such as its potential for limitless consumption, uncertainty of price (and cost to the consumer), product design and the consumer’s “asymmetry of insight” into essential informational components of the gambling transaction.Footnote 9
The Lancet Study calls for effective gambling regulation in all jurisdictions, recommending reduced population exposure and availability through prohibitions or restrictions on access, promotion, marketing and sponsorship; the provision of affordable, universal support and treatment for gambling harms; and the denormalisation of gambling through well–resourced social marketing and awareness campaigns.Footnote 10 Although the WHO has not adopted a formal policy for gambling, since publication of the Lancet Study, it has flagged a public health-oriented stance on the need for robust regulatory and legal oversight of gambling.Footnote 11 It acknowledges that the public health challenges of gambling are exacerbated by industry activity and the significant regulatory difficulties faced by governments to control access, especially to online gambling opportunities.Footnote 12 It identifies an accelerated normalisation of gambling “ … through commercialization and digitization” and rapid global growth attributable to sponsorship and marketing activities.Footnote 13 The WHO is supportive of developing gambling regulatory systems particularly in “ … low- and middle-income countries where commercial gambling activity is rapidly increasing.”Footnote 14 However, this commitment does not extend to development of a common regulatory framework for gambling control, such as that of the FCTC. It is recognised that such a proposal cannot be triggered without the necessary political will, and as Ó Cathaoir et al. observed in the context of food and alcohol, measures of this kind may also be opposed for a range of factors, including industry opposition and competing social and cultural preferences.Footnote 15
Nonetheless, in its call for action on gambling control, the Lancet Study was unequivocal as to the urgency of interventions to reduce population exposure and availability of gambling. It called for prohibitions or restrictions on “ … access, promotion, marketing, and sponsorship” as well as public health-motivated interventions in gambling activity.Footnote 16 This raises the question of whether the Lancet Study’s call for intervention in gambling advertising and marketing could be answered by the FCTC, which already harnesses the market environment for tobacco sales to impose ex ante controls on availability, visibility and market presence. The WHO has recognised that population-wide public health approaches to gambling control should include “ … effective regulation of gambling providers, including well-resourced enforcement activities.”Footnote 17 The Lancet Study also calls for interventions such as universal and mandatory limits on gambling consumption and controls on gambling product features that are known to be harmful.Footnote 18 However, as this paper will show, interventions of this type may go beyond the normative scope of the FCTC.
To investigate the potential for transposition of the existing tobacco control model to gambling, this paper examines the critical strategies of tobacco control norms and evaluates them against the features of gambling regulation, taking a first step towards examining the “fit” of the FCTC as a normative model for common, internationally agreed public health-motivated measures of gambling control. Although the aim is to provide a basis for further inquiry, the analysis finds that while some normative elements may be transferable from tobacco control, fundamental differences between the highly targeted interventions of tobacco law and the broader regulatory objectives of gambling frameworks make a direct transposition of norms problematic.
Section II considers tobacco control laws within the wider category of lifestyle risk regulation before examining the normative detail of the FCTC. Section III then looks at the relationship between gambling and law, identifying modern gambling control as a market-regulating framework that requires ex post as well as direct ex ante control of market activity and personal consumption. Section IV draws these analyses together to compare the control frameworks, finding that substantially different motivations are reflected in the more diverse regulatory objectives of gambling control, which also leads to diversity in its normative/substantive content and enforcement needs. Section V considers the “fit” of tobacco control with gambling regulation and some key questions that must be considered if lessons learned from the FCTC are to be applied to gambling. The paper concludes that if an international convention along the lines of the FCTC is to be developed for gambling, some key preliminary issues must be considered before a normative scheme of international rules for gambling control can be advanced.
II. The Framework Convention on Tobacco Control (“FCTC”)
1. Tobacco control laws as lifestyle risk regulation
Products associated with poor lifestyle choices such as tobacco, alcohol and unhealthy food products are closely associated with strategies for minimisation of NCDs.Footnote 19 The objective of regulatory and policy intervention in these lifestyle risks is to introduce a measure of legal control over exposure to the risks associated with individual choices and it does so in the format of distinctive “lifestyle risk” regulation.
Lifestyle risk regulation is a recognised sub-category of risk regulation.Footnote 20 It intervenes to manage behaviours associated with risks of chronic health harm. Legislators may seek to influence the decision to consume harmful products through preventive health promotion measures, such as advertising campaigns with negative messaging, complemented by mandatory packaging and labelling requirements. Lifestyle-oriented controls on the sale and supply of potentially harmful products and services are typically ex ante in focus, and they can be distinguished from broader public health interventions to address the negative health outcomes of harmful consumption, such as measures to fund addiction treatment. At international level, strategies to address lifestyle risk tend towards educational and awareness programmes, supported by soft law guidance.Footnote 21 This makes tobacco and the FCTC an outlier: by creating a clear and definitive set of norms with potential for global applicability, it is unique among international lifestyle risk control strategies and interventions.
Debates on the scope of lifestyle risk regulation can trigger questions about boundaries between personal autonomy, the vertical impact of intervention and the limits of legislative restraint on personal choice, creating normative and functional challenges.Footnote 22 Lifestyle risks pose tensions for government, and current regulatory approaches tend to rely on a regulatory mix of incentives and disincentives, coupled with some prohibition.Footnote 23
Lifestyle risk regulation is also a driver of social change, consumption habits and personal choice, designed to influence attitudes towards the regulated product or service.Footnote 24 While national policy may reflect local social and cultural preference, for example by reflecting social norms about the places where alcohol or tobacco may be consumed, the legal toolbox of lifestyle risk regulation is quite limited and the implementing rules tend to fall within a narrow range of market restrictions. Black considers that the “risk” element of lifestyle risk regulation is a “ … culturally contested concept,” with an unstable base, leading to diverse normative and policy approaches.Footnote 25 This is reflected in the mix of mandatory norms and non-binding commitments in the FCTC. The FCTC reflects cultural diversity in attitudes toward smoking by combining mandatory measures, such as labelling and packaging requirements, with discretionary provisions, including the encouragement of smoke-free areas.Footnote 26 This structure respects national preferences, enabling signatory states to calibrate their obligations in line with local norms. Consequently, universal rules on labelling and packaging coexist with flexible approaches to smoke-free environments, making room for local preferences, and create a balance between global standards and national cultural, social and legal norms. Hiilamo and Glantz’ examination of national implementation of the FCTC also evidences the inherent tension between globally endorsed public health objectives and the sovereignty of national policymaking, revealing that not all internationally preferred measures can be uniformly imposed or adopted at the domestic level.Footnote 27 This is not a challenge unique to the FCTC.Footnote 28
2. The FCTC and international tobacco control strategy
The FCTC is an example of a hybrid model that combines mandatory norms with information and market-influencing strategies, leading to a mix of mandatory and soft-law interventions that enable a measure of law and policy flexibility at national level.Footnote 29 Framed as a measure of “libertarian paternalism” the FCTC concedes the personal choice to consume tobacco products, but it counterbalances this freedom by creating market and social obstacles to that consumption.Footnote 30 The FCTC is closely aligned with the “4P” approach to market control.Footnote 31 The objective of a “4P” strategy in sale of unhealthy products and services is to create atypical market conditions aimed at mitigation of potentially negative health impacts, and to effectively “demarket” the target product by placing restrictions on the “Product,” coupled with restraints on its “Promotion,” “Price” and the “Place” of sale.Footnote 32 The focus of the “4P” strategy is preventative, and it is given effect through a set of predominantly ex ante rules that impact market presence, consumer choice and messaging around the subject-matter. As a market-influencing strategy, the “demarketing” of tobacco impacts the market presence of tobacco through “ … an external agency (government) reducing or eliminating all consumer demand within a product class (tobacco) in competition with the marketing actions of the (tobacco) industry.”Footnote 33 The intervention strategy of tobacco control is to harness these “4Ps” as an oppositional marketing measure that discourages but does not prohibit consumption of tobacco among adults, and to impose a full prohibition on consumption by children.Footnote 34
Giving effect to this strategy, the FCTC measures are framed as restrictions on supply and demand that include but also extend beyond the actions anticipated by the “4Ps.” All acceding states are obliged to adopt non-price measures directed at reduction of demand for tobacco (Article 7). Specific demand-reduction measures are articulated in Articles 6–14, encompassing fiscal interventions such as price and tax measures (Article 6), which remain non-mandatory, alongside mandatory non-price measures including product content regulation and product disclosure notifications (Articles 9 and 10), packaging and labelling requirements (Article 11), advertising and sponsorship bans (Article 13), and cessation support (Article 14). Other provisions, such as smoke-free environments (Article 8) and public education campaigns (Article 12), are recommended but not obligatory. Supply-side measures, set out in Articles 15–17, impose mandatory obligations on Parties to combat illicit trade, restrict sales to minors and promote economically viable alternatives to tobacco cultivation.
Mapping the “4P” strategy to the specific provisions of the FCTC demonstrates how a “demarketing” strategy can be transformed into normative interventions. “Product” restrictions are found in the compulsory requirements for testing and regulation of tobacco product contents and public disclosure of information on their constituents and emissions (Articles 9 and 10). Restrictions on “Promotion” are reflected in the mandatory provisions concerning health warnings, labelling and plain packaging (Article 11), together with a prohibition on all tobacco advertising, promotion and sponsorship (Article 13) as well as optional measures to impact the availability, visibility and promotion of tobacco products in the retail marketplace (Article 16.1). Restrictions on “Price” are represented by non-mandatory measures that confer national legislatures with discretion to impose price and tax increases. Framing this restriction as “optional” confers greater latitude for national policies to reflect local social and cultural norms, and it is not prescriptive as to the justifications for price setting and imposition of consumption taxes on tobacco. Restrictions on “Place” are represented by a set of measures directed at minors and optional interventions for the general population. Alongside an absolute prohibition on sales to minors, restrictions may be placed on the prominence, placing, availability and visibility of tobacco products in the marketplace so as to make them less attractive and accessible.Footnote 35 For the wider population, national legislatures may adopt measures to restrict exposure to tobacco smoke by imposing rules on public places of consumption such as “ … indoor workplaces, public transport, indoor public places and, as appropriate, other public places.”Footnote 36
Other measures found in the FCTC which are targeted at restricting supply and demand do not fall directly into the categories of the “4Ps.” On the supply side, there are mandatory obligations to act against illegal trade in tobacco products (Article 15, supplemented by the Protocol to Eliminate Illicit Trade in Tobacco Products, 2012). National measures to combat the wider market for tobacco are required to eliminate economic dependence on tobacco farming and trade by providing sustainable alternatives (Article 17). Further measures designed to impact demand are encouraged but left to the discretion of signatory states. These comprise measures such as public health education programmes, communication and messaging on risks and harms of tobacco consumption, training and public awareness (Article 12), and a general “catch-all” category of demand reduction measures that encourages development of counselling, prevention and treatment of tobacco dependence (Article 14). Other parts of the Convention concern questions related to Liability (Part VI), Cooperation and Exchange of Information (Part VII), Institutional arrangements (Part VIII), Settlement of Disputes (Part IX) and Development of the Convention (Part X).
Implementation of the main harm reduction measures is supplemented by non-binding guidelines developed by the Conference of the Parties (“COP”). The COP is made up of the states that have ratified the Convention.Footnote 37 The guidelines assist interpretation of the Convention and its provisions, recommend best practices and develop policy options tailored to national contexts. FCTC Guidelines have been issued for interpretation of Article 5.3 (protecting public health policies from industry interference), Article 6 (price and tax measures to reduce demand), Article 8 (protection from exposure to tobacco smoke), Article 11 (packaging and labelling), Article 12 (education, communication, training and public awareness), Article 13 (bans on tobacco advertising, promotion and sponsorship) and Article 14 (demand reduction measures concerning tobacco dependence and cessation).Footnote 38
In 2025 the FCTC celebrated the 20th anniversary of its coming into force. Although its success as an international instrument is widely celebrated, it has not been universally adopted, evidencing gaps that are attributed to the continuing influence of the tobacco industry and partial implementation in some jurisdictions.Footnote 39 While smoke-free laws, health warnings and youth access restrictions have achieved high compliance, taxation and alternative livelihood measures lag, which may reflect industry lobbying and market reality as well as political and economic constraints in many jurisdictions.Footnote 40 This observation is reinforced by the 20-year review of the Convention which in February 2025 highlighted that uptake of tobacco control has reached “ … an unavoidable inflection point” due to lagging implementation, changes in nicotine products and industry resistance.Footnote 41
III. Gambling and law
While the contours of gambling regulation are easily recognisable, articulating its conceptual and theoretical background is a more challenging task. Gambling law is concerned with more than the risks of harm associated with gambling, and it must also be understood within its historical context. Over centuries, laws have sought to exercise control over gambling activities for a variety of justificatory reasons. Consequently, gambling laws tend to have a “piecemeal” quality, represented by a diverse normative bundle of black-letter rules, codes of practice and guidelines drawn from an equally diverse hinterland of contractual, taxation and public law frameworks. The key variable here is that historically, the objectives of gambling legislation have been inconsistent, and in current gambling control frameworks it is possible to trace “recurring themes,” such as raising revenue, controlling perceived public health and social risks, controlling the “market” for gambling, prevention of crime, fraud and maintenance of public order.Footnote 42 Notwithstanding the varied historical development of gambling control law, modern gambling frameworks have evolved into a recognisable stratum of regulatory control, which addresses the structuring of access to legalised gambling, sets market conditions and imposes standards of consumer protection.Footnote 43
Modern norms governing delivery of and access to gambling services can be framed as a “command-and-control” regulatory model.Footnote 44 The essence of the command-and-control model is to manage, influence and control the underlying economic activity by imposing standards backed by sanctions.Footnote 45 The chosen regulatory measures may comprise standard-setting, licensing as a prerequisite to entry in the regulated market, qualitative operational controls and rules on “ … allocation of resources, products, or commodities and the prices charged to consumers or the profits made by enterprises.”Footnote 46 The principal challenge of this type of regulation is to identify and set appropriate operational standards, which, if overly restrictive or too difficult to meet, can result in operational and economic inefficiency.Footnote 47 The regulatory framework must also create sets of rules that are capable of adapting to change in technologies, addressing perceived harms and responding to changes in industry practices.Footnote 48 Should these rules prove unresponsive, they can quickly become obsolete.Footnote 49 Finally, regulatory frameworks of this type must be supported by a strong and effective enforcement regime if the scheme of control is to operate as a deterrent against industry breaches.Footnote 50
Most gambling legislation focuses on regulating market access and imposes operational standards with strict operational and transactional oversight. While regulatory models vary from monopolies to liberalised frameworks, they all share the common objective of restricting access and imposing significantly greater compliance burdens than those typical in the entertainment and leisure sectors. Miers identifies four primary regulatory elements in the structure of gambling control, comprising rules concerning “ … the probity of the supplier, the supply of gambling opportunities, the nature of the transaction and the player’s participation.”Footnote 51 Miers observes that these elements are present whether the objective “ … is the social or economic regulation of gambling.”Footnote 52 They reflect both liberal and restrictive approaches to gambling regulation and they encompass the diverse range of regulatory inputs that can be expected in the modern regime for control of legalised gambling. This degree of regulatory burden can also be highly contested by both commercial and public interests, and as Collins notes, it is a highly subjective issue, so that objectives and the chosen regulatory model will be influenced to a significant degree by local political, social and cultural preferences.Footnote 53
IV. Tobacco vs gambling: The legal frameworks compared
Although both are associated with addressing aspects of lifestyle risk, tobacco and gambling controls are designed to address different problems. The problems of tobacco consumption are its impacts on physical health, whereas gambling control must also tackle a wider set of adverse social and personal consequences as well as negative mental and physical health impacts.Footnote 54 Tobacco and gambling controls also translate into different policy and regulatory approaches that impact on the direct “inter-transferability” of norms from one framework to the other. These differences can be divided into three themes. The first are differences in regulatory objectives, the second are differences in substantive content, and the third are differences in oversight and enforcement.
1. Differences in regulatory objectives
Tobacco consumption always carries health risks, making it particularly suited to population-based interventions.Footnote 55 This is reflected in the FCTC when it acknowledges that consumption of tobacco products exposes consumers to risks that may:
create and maintain dependence, and that many of the compounds they contain and the smoke they produce are pharmacologically active, toxic, mutagenic and carcinogenic, and that tobacco dependence is separately classified as a disorder in major international classifications of diseases.Footnote 56
This makes tobacco control a single-issue public health concern, and tobacco control laws are designed to interfere with choices around consumption of a potentially harmful product. The health-focus of tobacco control legislation is acknowledged by the Court of Justice of the EU (“CJEU”) as a justification for restrictions on cross-border trade in tobacco products in the EU, confirming that restrictive market measures are vindicated by the overarching objective of ensuring a high level of human health protection, with particular emphasis on safeguarding the health of young people.Footnote 57
This also signposts some fundamental differences between tobacco and gambling in the objectives of control. Tobacco control is primarily concerned with addressing physical illness and NCDs. Tobacco control law and policy can also have as its purpose the elimination of consumption. For example, the EU has set the goal of a “tobacco-free Europe,” with the target of reducing tobacco usage to 5% of EU citizens by 2040.Footnote 58 This strategy is supported by proposals to strengthen horizontal regulatory and non-binding interventions, including review of taxation rules, a non-binding measure to influence adoption of smoke-free environments, as well as enhancement of its established labelling and packaging rules.Footnote 59
By contrast, the principal objective of gambling law is to create the legalised market for provision of and access to gambling services, thereby establishing the conditions for consumption. Gambling law must also address a greater range of consumption-related harms, spanning personal, mental health, social and financial consequences. Gambling law controls the conditions for access to gambling and by whom, it imposes controls on the volumes and places where gambling may be consumed, and it justifies direct interventions to control, restrict or even to exclude from consumption. Unlike tobacco control, which is a single-issue concern motivated by public health objectives, gambling control is complex, it creates and shapes the legalised market. It is both preventative and reactive, triggering legally diverse questions of authority and permission to intervene with personal decisions of consumption, for diverse reasons ranging from protection of mental and physical health and well-being to consumer protection and public order.
The differences in objectives between tobacco and gambling control reflect the consequences of engagement with the product itself. The physical and health harms of tobacco are intrinsic to consumption. By contrast, for many people, gambling is a leisure activity that does not carry negative health consequences. This means that gambling control laws must establish a balanced market that both facilitates access to safe levels of legalised gambling while creating an in-built set of controls that restrict how those services are delivered. The limited set of public health measures that are effective to curb tobacco consumption are not sufficiently broad to deal with gambling, since gambling control requires highly complex public health responses at both individual and population level.Footnote 60 Gambling also justifies a greater threshold of intervention because it carries a more diverse range of health-related risks, including behavioural addictions, together with adverse non-health social and personal cost, which can extend to social, personal and material costs to persons other than the consumer.Footnote 61 This means that gambling laws extend beyond mitigation of health risks, they are shaped by concerns about public order and they reflect evolving social and cultural norms, both contemporary and historical.
The broader regulatory focus of gambling control is evidenced in the diversity of justifications that can frame national gambling laws. Euchner et al. examined justifications for gambling regulation and policy in two EU countries (Germany and the Netherlands) against four types of frames: the “ … morality frame; the health and social frame; the security and public order frame; and the economic and fiscal frame.”Footnote 62 Their analysis found that morality justifications competed with non-morality questions of public health, social and economic policy in the development of laws and policy for control of gambling in both jurisdictions.Footnote 63 The weight of social concerns and the legacy of public order motivations in control of gambling is also evidenced in the criminalisation of licensing breaches and unlawful gambling, and in the idea that gambling law is an expression of cultural and national identity.Footnote 64 The diverse justifications for control of gambling are also rooted in perceptions of gambling. For some societies and cultures, it is a socially undesirable activity, for others it is a leisure activity that is recognised as carrying a level of personal risk but is largely tolerated and facilitated.Footnote 65 These differences of regulatory objective and framing are expressed in the diversity of regulatory models for control of gambling, as discussed at Part III above. The complex motivations of gambling control are also reflected in the judgments of the CJEU. The Court has repeatedly affirmed that national restrictions on the freedom to provide gambling services are justified by public interest reasons including “public policy, public security or public health,” and restricted access to gambling services is also necessary for achievement of
… objectives of consumer protection and the prevention of both fraud and incitement to squander money on gambling, as well as the general need to preserve public order.Footnote 66
The recent assessment of justifications for gambling control conducted by the Lancet Study, which examined eighty separate jurisdictions, identified thirteen diverse legislative framings for change in gambling legislation since 2018.Footnote 67 Consistent with the observations of the CJEU, it identified legislative justifications motivated by public health, consumer protection, crime prevention, revenue generation and economic framings as well as other social and cultural rationales.Footnote 68 A significant finding of the Lancet Study is that legislative justifications for change were often based on several motivating rationales, and there is not a clear conceptualisation of the “public health” justification.Footnote 69
Consequently, although both tobacco and gambling control make claims on public health concerns to justify legislative action, gambling law is built on a broader set of policy motivations that span concerns from public health, public order and cultural identity to economic and moral considerations. This is evidenced in the complexity and diversity of gambling law rationales, and it contrasts with the more unified, health-focused motivation that characterises tobacco control.
2. Differences in substantive content
The focus of tobacco control is population-based, primarily organised as a set of ex ante market measures. Its objective is to neutralise the presence of tobacco in the market by interfering with positive product messaging. This translates into a set of norms that restrict the marketplace for tobacco products by making them less visible and harder to access, while also ensuring that consumers receive information about the associated health risks of tobacco consumption which they might not otherwise have. The intent is to “nudge” consumers towards making healthier choices by giving effect to policies that “ … steer citizens towards making positive decisions as individuals and for society while preserving individual choice.”Footnote 70
Tobacco laws support this objective through advertising restrictions, product controls and standardised labelling and packaging, all aimed at guiding consumers toward healthier choices, but without direct oversight of individual transactions or imposition of direct quantitative restrictions on the volumes of tobacco consumed by the individual. Tobacco products are tangible and lawfully sold once they meet the required market standards of product safety, packaging and labelling. Law does not interfere with the personal decision to smoke; it just makes the consumer work harder to receive promotional messaging and to ignore the associated health risks. Tobacco control also stops short of imposing individual transactional limits or exclusionary devices that would allow the addicted smoker to voluntarily exclude themselves from purchasing tobacco products. Once tobacco is legally sold to the consumer, law does not impose controls on personal autonomy and decision-making around the choice to consume the tobacco product, thereby reflecting traditional concepts of preventative legislation.Footnote 71 In a departure from its predominantly ex ante focus, law may also restrict the places where tobacco can be consumed, but such ex post restrictions can be contested and may be an issue influenced by local social and cultural preferences. Although some tobacco products may be banned, this is also an exceptional and often contested measure in tobacco control.Footnote 72
By contrast, gambling control laws create the legal “market” for gambling by establishing a restricted regulatory environment within which gambling services can be legally supplied and consumed. The commercial activity of this artificial market is shaped by its legal boundaries, and it is reflected in the range of regulatory frameworks employed to control gambling, from state-controlled monopolies to licensing systems.Footnote 73 Gambling may be made subject to transactional interventions, control of the physical environments where gambling is accessed, and monitoring of consumption behaviours. It is concerned with control of interactions for the whole of the transactional lifecycle. It creates a complex network of ex ante restrictions on supply and access, coupled with ex post oversight and intervention in relationships between the supplier of gambling services and the consumer. How that intervention is framed depends on local arrangements, with some jurisdictions preferring self-regulatory approaches to transactional oversight, while others take a more prescriptive approach and may even require real-time access to online gambling transactional data.Footnote 74
Unlike other “lifestyle” interventions, gambling regulation is different because not only does it establish and shape the legalised market for gambling services, but it also then goes on to actively control both the supply and the conditions around consumption of gambling. This distinguishes it from the solely public health objective of tobacco control, which is focussed on ex ante measures to influence behaviours and decision-making at population level.Footnote 75 In addition to imposing restrictive marketing conditions, gambling regulation pursues its objectives through a suite of ex post measures that actively restrict the consumer’s transactional freedoms. Gambling law may dynamically intervene in all stages of the operator/consumer relationship, limiting choice, but it can also closely determine the liberality of market conditions and restrict consumption of gambling services. While gambling regulation shares some behaviour-influencing techniques with tobacco control, such as advertising restrictions, watershed rules, product visibility limitations and the provision of warnings and support information, it incorporates a deeper, more interventionist approach to regulatory oversight. The ex post supervisory function of gambling control may also require establishment of an authoritative regulatory presence, often in the form of a dedicated licensing, supervisory and enforcement agency. This agency will be conferred with continuous supervisory functions, with the capacity to dictate the conditions under which gambling activities may be offered and accessed. Measures such as self-exclusion schemes, mandatory limit-setting, restrictions on payment methods (e.g., credit card bans) and real-time interventions like in-play warnings and consumption tracking illustrate the potential of this supervisory depth.
The normative background of tobacco law also tends to be more static, in contrast to gambling, where regulation evolves through a mixture of black-letter law, soft-law instruments, restrictive licensing conditions and regulatory codes of practice. License conditions may be used to impose additional obligations, such as providing tools for users to manage their time and spending and initiating personal interactions when problematic behaviour is detected. Licence conditions can be supplemented by codes of practice that are updated from time to time and provide substantive guidance on compliance with license requirements, such as requiring development of operator policies for harm prevention and implementation of systems to combat problem gambling.Footnote 76
By contrast, ex post controls on tobacco tend to be limited to prohibitions on the places of consumption. This fundamental difference between influencing choice and actively managing consumption, marks the most significant divergence between the substantive content of tobacco and gambling norms. Not surprisingly, in gambling, this translates into a distinctive normative style, coupled with greater enforcement and oversight mechanisms that are not typical of tobacco control.
3. Differences in oversight and enforcement
Differences in the way that law supervises retail markets for tobacco and gambling are also key to understanding the “fit” of tobacco control measures with gambling regulation. Breaches of tobacco control laws are punished by monetary fines and custodial penalties, and where a licence has issued permitting the holder to sell tobacco products, this may be suspended or revoked.Footnote 77 By contrast, the laws that establish legalised gambling regimes are typically supported by proactive regulatory oversight. As already noted, black-letter law is typically supplemented by the detailed secondary legislation, soft-law rules, guidelines, regulatory standards and licensing conditions that accompany gambling control frameworks and give substance to market control.Footnote 78 The “fit” of tobacco control measures with gambling law becomes clearer when viewed through the lens of regulation: the objective of tobacco law is to establish a defined set of black-letter rules for the market in tobacco products, whereas gambling law goes much further by creating a comprehensive regulatory framework for legalisation and operation of gambling activities, founded on potential for active oversight throughout the whole market lifecycle.
Once tobacco products are lawfully manufactured and placed on the market, their consumption is subject to a defined set of limited obligations: age-restrictions, point-of-sale controls and consumption location rules. By contrast, law acts as a gatekeeper to legalised gambling, defining the contours of that market, determining who can access it, and under what conditions.Footnote 79 A central aim of gambling law is to distinguish between legal (licensed) and illegal (unlicensed) providers, setting the conditions under which gambling services may be provided. By using law to create the market, gambling regulation constructs a regulatory scaffold that supports but also polices the legalised market through all its transactional stages. Unlike licensed tobacco retailers, licensed gambling providers may face more detailed ex ante solvency and ex post probity requirements through rigorous pre-licensing assessments and sector-specific licensing conditions that constrain their market activities from the outset. Differences can also be found in liability and punitive schemes for illegal behaviours. In tobacco control, criminal liability for consumption outside of permitted locations may lie with both the trader and the consumer, whereas in gambling, it tends to be the supplier who is held accountable for violations of supply conditions.
Volume-based consumption controls further illustrate the oversight and enforcement differences. Tobacco control does not impose direct limits on how much tobacco a consumer may use; at most, it employs indirect nudges, such as restrictions on packet size or graphic content warnings. However, once legally purchased, tobacco may be consumed freely in any quantity. In contrast, gambling regulation may impose active obligations on the supplier to monitor and manage consumption, especially when gambling is accessed online. While the intensity of these obligations may vary across jurisdictions, oversight of consumption is a consistent feature of modern gambling regulation.Footnote 80 Advertising controls also differ as to the consequences of breach. Both sectors may restrict personalised advertising and impose restraints around broadcast and media advertising. Gambling regulation may allow limited advertising on some media, but it balances this concession against stricter consequences for breach. For gambling, breaches of advertising restrictions may have operational consequences as well as monetary penalties.
Breaches of gambling controls can also attract higher levels of monetary penalty, which are often calibrated against criteria such as annual turnover and other financial variables.Footnote 81 This layered enforcement structure reflects the more intensive and interventionist nature of gambling regulation compared to the relatively static post-sale oversight capabilities of tobacco control law. When tobacco and gambling norms are measured against oversight and enforcement criteria, the regulatory burden in gambling is shown to be more variable, potentially deeper and more dynamic, involving continuous oversight and the potential for market-restriction or even exclusion. In contrast to tobacco sales, the level of control and oversight on gambling services tends to increase from the time they are offered in the marketplace. Unlike tobacco, these controls may govern everything from the conditions under which market participation can be exercised, to how much can be consumed. Regulatory oversight is a continuous feature of the gambling supplier-consumer relationship. By comparison, tobacco control imposes a lighter regulatory framework in the marketplace, with fewer administrative demands and less severe market repercussions.
V. The “fit” of tobacco control with gambling regulation
Tobacco control laws operate on a relatively straightforward public health premise: smoking causes identifiable disease, and the objective of law is to reduce or eliminate this exposure.Footnote 82 The rationale for tobacco law is settled and it is reflected in the limited set of binding and non-binding international norms of the FCTC. By contrast, the rationale for gambling control is far less stable, and law must create the formal conditions to control an activity that might be benign for one person and have devastating impacts for another. This complexity transforms control of gambling from preventing exposure to a known harm into managing a conditional risk. Gambling regulation works because its purpose is to impose vertical market controls across all stages of the transactional activity and unlike tobacco law, it does so for a spectrum of reasons that includes but is not confined to public health rationales. What functions as a norm in tobacco control also becomes considerably more complex when applied to gambling regulation. As the previous section demonstrates, these foundational differences are key to understanding the “fit” of tobacco control with gambling regulation, but they also shed light on some fundamental questions that must be considered if lessons learned from the FCTC are to be applied to gambling.
The first is the framing of intervention. The public health justification of tobacco control is substantively different to that of gambling regulation. Tobacco control is underpinned by a well-established, internationally accepted single-issue paradigm rooted in prevention of clearly identifiable NCDs. As the Lancet Study observes, gambling legislative schemes do not always reflect a clear conceptualisation of “public health”: public health motivations associated with gambling policy cover a spectrum from prevention of gambling addiction and gambling disorder to a broader framing as “ … reducing or managing the social impact associated with gambling.”Footnote 83 The Lancet Study calls for a prioritisation of public health motivations in gambling control policy and law that recognises the need for system-level and population-level interventions.Footnote 84 Research has shown that the “responsible gambling” paradigm with its focus on individual behaviours continues to predominate, “ … and few jurisdictions aim to address the political, economic, or commercial determinants of gambling harms.”Footnote 85 To advance the cause of public health in gambling regulation, “ … lawmakers need researchers to review relevant evidence about what works, for whom, and what the positive and negative effects of specific laws and regulations may be.”Footnote 86 Clarity in the conceptualisation, objectives, impacts and effectiveness of public health-motivated gambling control measures is a prerequisite to reform, and to the mapping of a public-health informed approach to gambling regulation.Footnote 87
The second challenge is to identify the equivalent tobacco control norms that could be accommodated within this public health/population-based conceptualisation. Mirroring tobacco control, common restrictions on advertising and promotion may be a feasible objective, but international norms such as universal limits on consumption, common norms for gambling content and common standards for location of gambling venues may be more difficult to achieve.
If the Lancet Study’s recommendation for reduction of population exposure and visibility of gambling is to be given effect through “ … prohibitions or restrictions on access, promotion, marketing, and sponsorship” and “ … denormalisation of gambling via well resourced social marketing and awareness campaigns,” then the FCTC’s set of tobacco advertising norms may meet some of these objectives, although development of additional sector-specific rules might also be necessary.Footnote 88 A critical issue here is to determine whether the objective of international rules should be to prohibit gambling advertising in some or all of its guises or to agree a restrictive set of permitted advertising formats. The level of tolerance for legalised gambling advertising is fundamental to any international proposal, since not alone are advertising bans not the norm in gambling control, but the efficacy of outright advertising prohibition tends to be highly contested.Footnote 89 The CJEU has on several occasions acknowledged that “channelling” of demand towards legalised gambling options may have to be balanced against tolerance of regulated advertising opportunities to secure market visibility of regulated gambling services.Footnote 90 Restricted gambling advertising is a feature of the compromise between market access and regulatory control, and advertising bans run contrary to these regulatory rationales.
An international measure that accommodates some forms of gambling advertising and prohibits the most harmful modes and methods of marketing may be the more feasible approach. Prohibitions on marketing to underage children and adolescents should be unanimously acceptable, since as the Lancet Study notes, gambling by minors represents “ … a near-universal consensus that children and adolescents should not be allowed to gamble,” although enforcement of the prohibition is not always observed.Footnote 91
The potential for development of a suite of common cross-border gambling advertising restrictions, alongside website and payment blocking, and other possible cross-border interventions in the EU/EEA were considered in 2018 by Hӧrnle et al. in a study undertaken on behalf of the European Commission.Footnote 92 The opportunity that social media advertising of gambling affords for exploitation of regulatory loopholes is widely acknowledged and the study noted that “… effective enforcement in this area is tricky” and was often too slow to be effective.Footnote 93 Since the study was completed, the EU has embarked on a programme of digital law reform, including better enforcement measures, through its Digital Package, which includes the Digital Services Act (“DSA”).Footnote 94 Although the DSA opens an avenue for centralised EU cross-border enforcement action against online advertising by illegal gambling sites on very large online platforms and search engines, at the time of writing, formal enforcement measures have not been commenced.Footnote 95 Hӧrnle et al. also observed that the complexity of arrangements for advertising control at national level created another potential barrier to uniform approaches.Footnote 96 They found that oversight of gambling advertising does not always vest fully in gambling regulators, and other agencies may have co-extensive supervisory functions.Footnote 97 On the other hand, as the flexible approach to national arrangements adopted in the FCTC demonstrates, this is precisely the type of issue that can be addressed in international arrangements by encouraging and facilitating inter-agency regulatory cooperation across all advertising media, including social media.Footnote 98 Hӧrnle et al.’s conclusion that “there is considerable scope for international co-operation” in this area was accompanied by a caution regarding user-generated gambling advertising content, an issue which has escalated significantly in the intervening period.Footnote 99 If FCTC-like controls over gambling advertising are to be considered, then they should take the broadest possible view of what constitutes “advertising” and this may necessitate development of novel sector-specific rules.
The FCTC rules on packaging and labelling of tobacco products might also lend themselves to repurposing in terms of the information to be provided to consumers of gambling services. There is a case for common warning notices with minimum visibility, content and prominence requirements, such as those used in consumer information notices, although the efficacy of these information requirements might also be questioned.Footnote 100 Other restrictions such as restrictions on gambling locations and venues, just as with restrictions on the places where tobacco can be consumed, are suited only to land-based gambling, and may run into jurisdictional opposition and require the same type of non-binding obligation as is found in the FCTC. Similarly, if gambling product characteristics that are known to be harmful are to be dealt with by international agreement, the evidence base for universal standards may have to be clearly established. Unlike the toxicity of tobacco products, setting an unsafe level of gambling design may be difficult to achieve in an international convention.
As a single-issue intervention, breaches of tobacco law may be neatly addressed through imposition of set penalties that can be administered under the general criminal laws. They do not demand the type of proactive regulatory oversight which is central to modern gambling control frameworks.Footnote 101 As already discussed above, legalised gambling is an exercise in ex post as well as ex ante market control, and it is this distinguishing factor that makes it more challenging to replicate the success of international tobacco control. Both the Lancet Study and the WHO have acknowledged that gambling measures to protect public health at population and individual level can only be made effective if measures of this kind are supported by a significant degree of ex post regulatory oversight and commitment of resources. However, not all jurisdictions possess this level of regulatory muscle.Footnote 102 A recommendation of the Lancet Study was the establishment in all jurisdictions of “ … a well resourced, independent, and adequately empowered regulator, focused on the protection of public health and wellbeing,” whether or not gambling is legalised in that jurisdiction.Footnote 103 The WHO has also recognised that approaches to gambling control should include “ … effective regulation of gambling providers, including well-resourced enforcement activities.”Footnote 104 This call is consistent with the assessment of this paper, which shows that the ex post role of gambling oversight creates a regulatory ecosystem that fundamentally distinguishes gambling from tobacco control. If the WHO is to act on gambling control, then it might begin here, with a call for a statutory, autonomous and independently funded gambling oversight body in every jurisdiction, as a universal measure of intervention.Footnote 105
VI. Conclusion
While both tobacco and gambling controls are oriented towards mitigating lifestyle-related risks, they are geared towards addressing different problems, and this is reflected in their legal frameworks. Tobacco control operates within a relatively linear public health paradigm. It targets a tangible product whose risks are uniform, predictable, and primarily physiological. It relies primarily on ex ante measures designed to influence consumer choice, and seeks to minimise, if not eliminate, consumer demand for tobacco products. By contrast, gambling control constructs and actively governs the market for a permitted but otherwise illegal activity, necessitating a complex interplay of preventative and reactive controls that extend beyond public health concerns to encompass consumer protection, financial well-being, and public order.
This has implications for the “transferability” of international tobacco control norms to the gambling context. An argument can be sustained for the introduction of common restrictions on advertising, marketing and sponsorship of gambling, but a total prohibition on gambling advertising that replicates the FCTC ban on tobacco advertising may not be a feasible goal, given the market-making objectives of gambling regulation. Other marketing measures such as sponsorship or promotional activities may be suited to an international ban on a case-by-case basis. The argument for a wider suite of tobacco-like interventions that replicate those of the FCTC, will have to accommodate and allow for legal and constitutional arrangements at government and jurisdictional level, differences in social, cultural and public order preferences, as well as economic considerations. The overarching requirement for ex post regulatory oversight of population-based structural rules and compliance with individual interventions, should also be recognised as a potential stumbling block to universal norms. A certain awkwardness in the “fit” of tobacco norms with gambling regulation must be acknowledged, but there is still much to learn from the FCTC and its achievements to date.
The goal of internationally agreed norms for gambling control is to have governments at all levels commit “… to the protection of public health and welfare from harms associated with gambling.”Footnote 106 This requires a shared understanding of “public health” in the context of gambling policy and regulation by policymakers and legislators alike. A scheme of international public health-motivated sector-specific rules must address the practical constraints of gambling control objectives, and to be effective, it must accommodate the prerequisite of impactful ex ante and ex post regulatory oversight. Ultimately, even if all of these objectives cannot be achieved at an international level, lessons learned from the FCTC show that by influencing visibility, market presence and consumer access to the marketplace through greater control of gambling advertising, there is the aspiration that at some time in the not-too-distant future, another nine-year-old might pose the question, “Daddy, what is gambling?”
Competing interests
The author declares none.
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