No Off Switch: Consumer Groups Ask the FTC to Regulate Push Notification Marketing by Wagering Apps
by: Brian Schaller
If your app sends a promotional push notification, can the user turn that off without also losing login alerts and withdrawal confirmations? A coalition of consumer advocacy and public health organizations has asked the FTC[1] to make that question a matter of federal rule for sports betting and prediction market apps. The FTC published the petition for comment in late July, and the comment window closes on August 27 (see, here, for the petition).
Many FTC petitions go nowhere, though we believe this one is still worth knowing about because it asks the FTC to regulate push notifications in certain ways that federal law already treats email and text message marketing. Push notifications are typically viewed as sitting outside the CAN-SPAM Act[2] (email) and the TCPA[3] (text messaging). The petition also lands on a fast-growing sector. The advocacy groups are challenging the advertising practices that sports betting and prediction market apps use to keep consumers engaged.
What Was Filed
In July, the National Consumers League, Campaign for Fairer Gambling, the National Council on Problem Gambling, the Public Health Advocacy Institute, and Truth in Advertising, Inc., petitioned the FTC to open a trade regulation rulemaking under Section 18 of the FTC Act. The target, in the petitioners' words, is unconsented and unstoppable marketing push notifications for wagering applications.
The FTC published the petition and opened it for comment, with comments due August 27. The notice is explicit that the FTC will not weigh the merits until the comment period closes, and that it may deny the petition or find it insufficient to warrant a rulemaking at all.
The Core Petitioner Issue
Petitioners appear to be arguing that their main issue is with the bundling of different types of communications. The petition alleges that many wagering apps request a single notification permission covering both promotional messages and account communications, then offer no in-app setting to switch off the promotional messages alone. According to them, a user who wants the betting promotions to stop has to disable notifications for the app entirely, which also kills other alerts such as login attempts, withdrawals, and data breaches. The petition points to a 2025 review by one of the petitioners in which the petitioner found that 93% of notifications sampled from three leading sportsbook apps (DraftKings, FanDuel, and BetMGM) contained marketing content. The petition also criticized prediction market apps for their use of marketing in push notifications. The petitioners credit DraftKings with having since added a marketing-only toggle. They also note that Kalshi (a prediction market operator) now provides separate push notification preferences, though the petition states that neither Kalshi nor Polymarket (a different prediction market) sought separate consent for promotional notifications at signup, and it criticizes both operators elsewhere.
What the Rule Would Require
The petitioners did not just ask for a study. They drafted the rule text, proposed as a new Part 466 of Title 16 and adapted from the email and text message rules. Three requirements would apply:
Separate express written consent for marketing notifications, obtained apart from any request to send notifications generally or for security purposes, and limited to a single app.
A frequency disclosure in mandated words: "In [YEAR], [APP] sent an average of [NUMBER] marketing push notifications per week." This one is unusual. We are not aware of any U.S. marketing statute or FTC rule that currently requires a company to publish how often it advertises to its own users, though message-frequency disclosures are a part of texting industry guidelines/best practices.
An in-app opt-out for marketing notifications, easily accessible, with no fee and no extra steps, plus an opt-out link on the page each notification opens.
Why It Is Worth Watching
Wagering app, prediction market, and fantasy sports operators, and the companies that do business with them, should pay attention to this petition for a number of reasons.
First, the petition targets how notifications are built, not what they say. The petitioners do not appear to allege that the content of any particular notification is false or misleading, though they do argue that the permission prompts fail to disclose how much of the notification stream is advertising. Their complaint is that the app requests a single permission covering both marketing and account messages, then, according to the petitioners, gives the user no way to turn off the marketing alone. Companies that send marketing push notifications should take note of what advocacy groups are currently focusing on. It is also important to know the current functionality of the push notification opt-ins and opt-outs of your apps and evaluate how your company chooses to handle them.
Second, the proposed rule would not only apply to the company that owns/operates the app. It would reach a sender "or any person acting on behalf of a sender." That language could arguably cover messaging and engagement platforms, white-label providers, affiliates, and the agencies that build retention campaigns. This is a good reminder that operators and their vendors should review how their contracts allocate responsibility for marketing compliance, including obligations tied to consent and opt-out requests.
Third, the proposed definition of wagering application is broader than sportsbooks. It names fantasy sports operators and prediction market exchanges, and it is not limited to state-licensed activity. Operators that rely on the legality of fantasy sports as a game of skill, or on being regulated federally as a prediction market rather than licensed by a state, should not assume that position carries over to this proposed rule.
Where It Stands
Comments are due August 27. Section 18 rulemaking is procedurally demanding, so even a decision to proceed would not produce an enforceable rule quickly, and the FTC may decline to proceed at all. Details currently remain limited on how it views the request.
We believe that this is worth keeping in view either way: marketing regulations keep expanding at the state level regardless of what the FTC does, as Pennsylvania's recent Telemarketer Registration Act amendments show.
We will monitor the docket. If you have questions about notification practices, consent architecture, or how vendor agreements allocate marketing compliance, InfoLawGroup is here to help.
[1] Federal Trade Commission
[2] Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003
[3] Telephone Consumer Protection Act
Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE. This summary does not constitute legal advice.