Reproducing Responsible Gambling through Codes of Conduct: The Role of Trade Associations and Codes of Conduct in Shaping Risk Regulation

Online gambling emerged in the 1990s in the midst of a process of market liberalisation. Here, scholars have argued that the gambling industry actively seeks state regulation to authorise and legitimate its activities. Why then, since the emergence of the online gambling industry, have trade associations continually sought to develop responsible gambling codes of conduct? In this paper, I address this puzzle by documenting and tracing the development and deployment of responsible gambling codes of conduct by trade associations from the emergence of the online gambling industry in the early 1990s and through processes of increased market liberalisation at the national level and market integration at the European Union level. I argue that online gambling trade associations deploy responsible gambling codes of conduct at particular moments of opportunity to shape their members ’ external legal and regulatory environment and to reproduce and embed a particular understanding of how gambling-related risks should be regulated.


I. Introduction
Risk is central to the consumption experience of gambling whilst at the same time gambling produces risks of individual and societal harm. 1 As Reynolds notes, "[r]isk has always been an inherent component of gambling". 2Online gambling emerged in the early 1990s in the midst of a process of market liberalisation that began in the 1980s. 3his process of market liberalisation was tied closely to a growing belief in neoliberal ideals of deregulation, competitive markets and a shrinking role of the state, along with the valorisation of individual choice and responsibility. 4Here, concerns with individualand societal-level harm and questions of how risk is perceived and regulated are central to the process of gambling market liberalisation.
Despite the virtual and transboundary nature of online gambling, there is a crucial material aspect to the online gambling industry in the sense that gambling operators must be physically located in individual states and jurisdictions. 5As Wilson explains, "far from being divorced from place, online gambling is a product of the unique institutional conditions created by governments through policy and the legal system, and as such is very much the product of specific locations". 6Consequently, the regulatory environments of states and jurisdictions are central to understanding the activities of the online gambling industry.We must recognise that the regulatory environment in which organisations operate not only constrains but also empowers certain organisational forms and actions. 7Flowing from this, scholars have argued that the gambling industry actively seeks state regulation in order not only to authorise but also to legitimate its activities. 8hy then, since the emergence of the industry, have online gambling trade associations continually sought to develop responsible gambling codes of conduct?In this paper, I address this puzzle by documenting how and why online gambling trade associations have developed and used responsible gambling codes of conduct.I trace these activities from the emergence of the online gambling industry in the early 1990s and through processes of market liberalisation at the national level and market integration at the European Union (EU) level.I argue that online gambling trade associations deploy responsible gambling codes of conduct at particular moments of opportunity to shape their members' external environment.Responsible gambling codes of conduct are used to construct, reproduce and embed a particular understanding of gambling-related risks and how these risks should be regulated.In making this argument, I draw upon and seek to contribute to the work of critical gambling scholars who spotlight how the gambling industry seeks to shape how we understand gambling and the regulation of gamblingrelated risks, along with socio-legal scholarship concerned with the relationship between mechanisms of self-regulation and legal rules.
The analysis in this paper draws upon research undertaken in the context of The Bingo Project. 9In addition to informal conversations, scoping chats and participant observation at industry events, forty semi-structured interviews with online gambling stakeholders were conducted. 10The interviews were recorded and transcribed, with final transcripts approved by the interviewees.The interviews were anonymous and confidential.Following data collection, I analysed and coded the data with NVIVO in order to draw out key themes.
The paper proceeds in four section.Firstly, I lay some conceptual groundwork by unpacking and linking the concepts of trade associations, self-regulation and the regulatory environment of organisations.From here, I explore the history of the concept 4 F Markham and F Young, "'Big Gambling': The Rise of the Global Industry- 10 Interviewees included national regulators (13), online gambling operators (9), lottery operators (4), responsible gambling consultants (4), gambling software providers (4), gambling trade associations (2), charities (1), testing houses (1), lawyers (1) and affiliate marketers (1). of responsible gambling, its use by the gambling industry and the importance of state regulation for the gambling industry.Building upon these two sections, the paper then traces how online gambling trade associations have developed and deployed responsible gambling codes of conduct from the emergence of the industry and through processes of market liberalisation and integration.

II. Trade associations and the regulatory environment
Trade associations are organisations that represent the interests of specific industries and mobilise firms to allow for collective industry-wide action that addresses common problems. 11Trade associations tend to emerge during the early years of an industry, when collective action is required to gain legitimacy for novel organisations. 12Collective action facilitates new industries in acquiring moral and regulatory acceptance whilst allowing industries to organise around common goals such as shaping regulation and markets. 13ertain industries, such as the alcohol industry, need trade associations as their activities produce risks that pose structural challenges and affect entire industries. 14A central feature of trade associations is that they are established and operate not only to create "a negotiated environment for members", but also "to actively affect [the] environment beyond the boundaries" of the trade associations. 15Mechanisms of self-regulation are central to these functions.
Trade associations produce self-regulation to facilitate interaction and collective action, to address risks and to influence the status, credibility and legitimacy of their members. 16ore concretely, self-regulation is central to trade associations' attempts to influence regulation, government policy, public opinion and members' behaviour. 17By creating selfregulation, trade associations provide "cultural infrastructure" for their members, enabling them to connect with and shape meaning within their environment. 18onceiving of self-regulation as "cultural infrastructure" resonates with findings from law and society scholarship.Socio-legal scholars have argued that trade associations play an important mediating role in markets. 19Here, trade associations and self-regulation are significant in the development of "an industry morality". 20An industry morality "defines right conduct", "legitimates aspirations other than profit as a good reason for action" and "provides a legitimate account of the industry's activities to the public". 21he development of an industry morality allows an industry to address "demands that it is responsible and responsive". 22n industry morality, articulated through forms of self-regulation, tends to arise "under conditions of uncertainty" caused by external pressures. 23Self-regulation frequently emerges when an industry perceives of "the future prosperity and perhaps even the very survival of the industry as dependent upon some form of self-control". 24ndustry self-regulation is often developed when states authorise an industry to regulate or threaten (more stringent) legal intervention or where states' regulatory frameworks are "insufficient to protect the industry from itself". 25 Therefore, there is a crucial connection between organisations' legal and regulatory environment and the development of self-regulation.
While law may appear as a constraint on organisations, with the relationship between law and organisations characterised by confrontation and contestation, this is not always the case. 26Rather than seeing law as constraining organisational freedom, law can construct, justify and authorise organisations and their activities, and organisations often "seek and exalt legal attention, as part of larger projects of structuration and legitimation". 27For example, organisations often use regulatory approval to signal their legitimacy. 28Furthermore, regulatory regimes rarely emerge independently of the organisations they seek to govern, and organisations play a central role in debates about how they are regulated. 29The key point here is that the legal and regulatory environment in which organisations operate both constrains and empowers, and organisations may seek out and attempt to shape this part of their environment. 30In this respect, there is an important relationship between the state, law and industry self-regulation.

III. Responsible gambling and the regulation of risk
The concept of responsible gambling emerged from the gambling industry in the USA in the 1980s. 31However, it was not until the 1990s that the concept of responsible gambling came to prominence due to the work of land-based gambling trade associations in the USA and Australia.In 1995, the US gambling industry formed the American Gaming Association.The American Gaming Association emerged in response to mounting governmental scrutiny of the industry through the National Gambling Impact Study Commission and increasing industry recognition that "problem gambling" could lead to the demise of the industry. 32Frank Fahrenkopf, the then president of the American Gaming Association, explained at the time that "the growth of the industry is certainly endangered by the issue" of "problem gambling", and "it is not hyperbole to say that the industry's very existence is at stake". 33Drawing parallels, Fahrenkopf outlined how the tobacco industry had previously paid the price for failing "to admit that there was a problem" and stalling "in their commitment to acting responsibly". 34The gambling industry, Fahrenkopf said, would have to respond appropriately and proactively to the issue of "problem gambling". 35ore recently, Fahrenkopf made it clear "that owning, or at least influencing the narrative was going to be key to keeping gambling legal in the US". 36he American Gaming Association established the National Centre for Responsible Gaming in 1996, a charitable organisation, to fund research into "disordered gambling behaviour", and it published the "Responsible Gaming Resource Guide" in the same year.In 2003, the American Gaming Association published "the American Code of Conduct for Responsible Gaming".Indeed, Aldrich and Martinez discuss this episode in their analysis of the emergence of trade associations. 37They draw attention to the emergence of the American Gaming Association as an example of the role that trade associations play in promoting collective action to gain socio-political legitimacy and regulatory approval and "to solicit their own regulation to ward off more drastic action by government". 38he Australian Gaming Association and the American Gaming Association were central to the development of the influential Reno Model for responsible gambling. 39As Hancock and Smith explain, the Reno Model "emerged from collegial roundtables supported by government and commercial gambling interests". 40The Reno Model defines responsible gambling as "policies and practices designed to prevent and reduce potential harms associated with gambling". 41Whilst the Reno Model sets out specific responsibilities for the state, industry and individual, it is telling that, "[o]nce informed about the attributes of an activity, gamblers assume the burden of gambling responsibly". 42Thus, the Reno Model plays an important discursive role in terms of framing the individual as bearing the primary responsibility to regulate risk and minimise gambling-related harm.In this context, the gambling industry "generally embrace[s] Reno Model precepts because they do not unduly affect business as usual yet give the impression that reducing gamblingrelated harm is a high priority". 43he gambling industry's promotion of responsible gambling and its emphasis on problem gambling have been focuses of attention by critical gambling scholars.Insightfully, Cassidy argues that the gambling industry seeks to shape how we understand gambling through the "maintenance" of the "tropes" of problem gambling and responsible gambling. 44The concept of problem gambling, especially in situations where it is linked to a medical diagnosis that pathologises individuals, creates a dichotomy between the majority of responsible gamblers and the minority of "problem gamblers".The concept of problem gambling also "deflect[s] attention away from the [gambling] product's potentially problematic role in promoting that consumption, and onto the biological and psychological vulnerabilities of a small minority of its consumers". 45Furthermore, scholars have argued that the gambling industry and other stakeholders have "constructed and reproduced" the concept of responsible gambling around the values of individual freedom and informed choice. 46This model of responsible gambling "emphasises education, minimal interventions and self-management" and de-emphasises "restrictions on the supply of gambling that might impact on the rights of the 'normal' majority to consume freely". 47Although there is evidence that responsible gambling iniatiatives, including the provision of information, messaging, voluntary self-exclusion and spendand time limit-setting (pre-commitment strategies), have some benefit, this evidence is limited, and studies have shown low awareness, uptake and effectivenss of such tools in reducing gambling-related harm. 48In challenging this dominant responsible gambling discourse, scholars and practitioners have increasingly advocated a public health approach to gambling regulation that seeks to advance the public good, recognise that gamblingrelated harm extends beyond the individual "problem gambler" and minimise and avoid harm by targeting gambling products and environments. 49ollowing from the critiques of responsible gambling, and given the inherent conflict between the "industry's responsibility rhetoric and the profits it reaps from irresponsibility", scholars have argued that responsible gambling is but a mere public relations exercise and a means by which the industry seeks to manage its regulatory risk and legitimacy. 50Indeed, the manner and way in which the gambling industry discursively frames and communicates its activities is a key aspect of how it manages risk and builds legitimacy. 51

IV. Self-regulation, risk and industry survival
The first online gambling sites emerged during the middle of the 1990s.At the time, and to some extent still today, online gambling was an offshore industry.Remembering back, an interviewee with decades of experience working for online gambling operators explained: [B]ack then [2000] it was very grey : : : The product was ahead of the legal system.So, back then it was only two or three places : : : that had actually proactively said: "yes, we will license online gaming".The rest of the world hadn't said: "no, you can't" but at the same time hadn't said: "yes, you can". 52e offshore jurisdictions favoured by the early online gambling operators, such as the Kahnawá:ke territory, Curaçao, Gibraltar and Malta, offered not only favourable taxation regimes, but also minimal regulation of the gambling products. 53The first online gambling trade associations begin to appear in the early 2000s when the online gambling industry was still in its infancy.

Legitimating the offshore industry
The emergence of online gambling trade associations during the founding years of the industry is to be expected.Not only are trade associations formed during this period, but they quickly get to work on the development of responsible gambling codes of conduct.In 2003, e-Commerce and Online Gaming Regulation and Assurance (eCOGRA) and was one of the first online gambling trade associations to develop an online gambling code of conduct.eCOGRA outlined that its members must share its vision "towards fair and responsible gambling". 54At the time, eCOGRA's membership was open only to online gambling software providers.Its founding members were Virtual Holdings (which would later become 888 Holdings) and Microgaming Software Systems (the first online gambling software provider). 55Both of these members operated out of Antigua and between them controlled over 70% of the online casino market.Later, online gambling providers that operated out of the Kahnawá:ke territory, such as Party Gaming and Playtech, joined eCOGRA.The perceived need for collective action in order to address the lack of effective regulation in offshore jurisdictions was a key driver of the emergence of eCOGRA and its eCOGRA Generally Accepted Practices (eGAP) code of practice.Indeed, in outlining the benefits to operators, eCOGRA pointed towards the ability of the eGAP code of practice to address the "clear deficiencies in the appropriateness of most of the worldwide regulatory jurisdictions involved in online gaming". 56During the early 2000s, there was concern amongst large online gambling operators that the regulatory frameworks of the offshore jurisdictions from which they operated were insufficient to ensure credibility and trust in the industry.Speaking at this time, the CEO of Virtual Holdings noted: In the absence of appropriate player protections being implemented by regulators on a global scale : : : The [eCOGRA] seal will become an instant symbol to the players that they can trust the site to offer fair games and honest, timely payment transactions. 57OGRA's chief executive emphasised that the eCOGRA code of conduct was necessary for an industry that had been "trying to build credibility with consumers and regulators".58 eCOGRA's director emphasised that the code of conduct "is about credibility".59 The emergence of eCOGRA is a clear example of trade associations forming in the early years of an industry to facilitate collective action aimed at gaining socio-political legitimacy for the industry.The eCOGRA code of conduct was the central mechanism used to achieve this objective.The eGAP code of practice also had an important discursive role as it reproduced a particular way of thinking about how gambling-related risks should be regulated.The code of practice speaks in term of an "underlying philosophy : : : based on the achievement of the objectives of player protection : : : and responsible conduct by operators".60 Nevertheless, this is tempered by the further objective of not disrupting or constraining the ability of software providers or operators to run their businesses.The eGAP code of practice maps clearly onto an idea of responsible gambling discussed above that emphasises the provision of information as a key means of protecting consumers, along with the responsibility placed upon individual gamblers to voluntarily set limits on spend/time and request to be self-excluded.Whilst eCOGRA was a creature of the offshore gambling industry, the emergence of online gambling trade associations and the deployment of responsible gambling codes of conduct became a key feature in states, such as the UK, that were considering the liberalisation of their online gambling markets.

Ensuring industry survival
The UK was the first EU Member State to move towards a liberalised online gambling market.The process of liberalisation proceeded the 2001 Budd Report. 61It was in this year -2001that the first UK-based online gambling trade association formed: the Interactive Gaming, Gambling and Betting Association (IGGBA).
IGGBA quickly sought the endorsement of GamCare, a charity working in the area of gambling harm prevention, and it cooperated with GamCare in the development of its responsible gambling code in 2003. 62On publishing its responsible gambling code of practice, IGGBA noted that it hoped "that the UK government and Gaming Board will consider this Code as the basis for their future regulations in this area". 63The IGGBA responsible gambling code of conduct, along with its connection to GamCare, was central to its representations about recognising "the responsibility of the industry" during the development of the 2005 Gambling Act. 64he UK House of Lords and House of Commons Joint Committee published its report on the draft gambling Bill in April 2004. 65In July 2004, the Association of Remote Gambling Operators (ARGO) formed.ARGO followed IGGBA in quickly collaborating with GamCare to establish a responsible gambling code of conduct, which was published in December 2004. 66ARGO's general secretary explained that the trade association "could have waited for the Gambling Commission to be established and for it to develop its own standards, but there was a genuine acceptance that this was something that [the online gambling industry] had to deal with now". 67In July 2005, IGGBA and ARGO merged to create the Remote Gambling Association (RGA), with the RGA responsible gambling code published shortly after in October 2005. 68 trade association representative explained the rationale behind the introduction of industry codes of conduct in the following terms: [I]t was partly we weren't regulated.And so actually we were developing our own social responsibilities and anti-money laundering and all these sorts of things because nobody else was doing it.: : : It was all so weak.So, this was something we needed to do. 69e interviewee expanded upon this explanation: "It is not purely altruistic reasons, it is just good business.Problem gambling is bad business.Underage gambling is a disastrous business for all sorts of reasons." 70he increased risk associated with online gambling, particularly in terms of increased access to gambling, created concern amongst the industry that evidence of increased harm caused by online gambling would lead to either stringent regulation or the prohibition of online gambling."[I]f you saw an explosion of problem gambling rates", an interviewee asked, "where does that lead you?It leads you to [be] shut down at some point." 71"The regulation will come", reminisced the interviewee: There will be a huge public scandal.The next time a prevalence study comes out and we see that problem gambling has doubled or tripled and that is down to online, we won't even licence it, we will ban the whole thing completely or we will licence it and regulate it so heavily that it doesn't work.So that was the imperative back then : : : 72 The pre-emptive nature of the development of industry codes of conduct and concerns with the survival of the industry shine through in the statement by the interviewee: "So there was the long-term thinking which is, if we don't deal with that ourselves, someone is going to force it on and that would be worse." 73hrough the development of responsible gambling codes of conduct, online gambling trade associations sought not only to build socio-political legitimacy and regulatory approval, but also to influence how the UK Gambling Commission regulated risks produced by the industry.The "UK's regulatory approach to gambling did not develop in a vacuum, but hand-in-glove with industry". 74The Joint Committee on the Draft Gambling Bill noted the IGGBA responsible gambling code of practice in its report and recommended that the Gambling Commission should deal with responsible gambling through codes of conduct negotiated with the gambling industry. 75Importantly, the Joint Committee noted that "the [Gambling] Commission should use those codes that have been voluntarily adopted as a basis for the statutory codes". 76oth the ARGO and RGA social responsibility codes framed responsible gambling around the ideas of individual freedom, choice and responsibility and that consumers should be protected through information and empowered to manage risks themselves. 77The RGA code outlined that: Without compromising the principle that customers are responsible for their own gambling, the nature of the activity is such that information should be made available to empower them to gamble responsibly.
Gambling is a mainstream leisure activity for adults.For the vast majority of customers it is a harmless pursuit : : : [O]perators should empower their customers to help them ensure that their gambling does not become a problem and that, if they fear it might be, there is information available for them about sources of support and advice. 78e UK Gambling Commission's Licence Conditions and Codes of Practice that emerged in 2006 largely mirrored those of the online gambling trade associations in its focus on the provision of information, voluntary limits and self-exclusion, and it saw operators as "best placed to identify and to mitigate risks to the licensing objectives" by delegating to them the responsibility to develop social responsibility policies and procedures. 79he first online gambling trade associations formed during the early years of the industry and used responsible gambling codes of conduct to build socio-political legitimacy and to influence how gambling and the regulation of gambling-related risk was understood by their external environment.Building upon this analysis, I now examine how online gambling trade associations sought to use responsible gambling codes of conduct to pry open gambling markets and further shape their regulatory environments at the national and EU level.

V. Shaping national and EU regulation
The European Betting Association (EBA) was established in February 2004 to represent EU gambling operators, principally those licenced in Malta and Gibraltar. 80Whilst EBA's key objective was the liberalisation of EU gambling markets, it sought to use responsible gambling codes of conduct as a means to achieve this goal. 81In March 2007, EBA renamed itself the European Gaming and Betting Association (EGBA). 82A year later, in 2008, we see increased collective action within the EU between EBGA and the two key organisations discussed previously: RGA and eCOGRA.

Opening markets and shaping regulation
From 2006, the European Commission began a series of infringement proceedings against EU Member States' restrictions on the provision of cross-border gambling services following complaints from the gambling industry. 83During this period, EGBA used responsible gambling code of conduct in attempts to pry open Member States' online gambling markets.It did so in two ways.Firstly, EGBA argued that national monopolies were not necessary to protect consumers.In so doing, EGBA used its responsible gambling code of conduct to counter arguments made by Member States that the only way in which they could ensure the objective of consumer protection was through a national monopoly. 84Secondly, EGBA benchmarked their responsible gambling code of conduct against responsible gambling measures used by state monopoly operators. 85In 2007, EGBA contracted eCOGRA to undertake this benchmarking study. 86The study claimed that, in most cases, the EGBA responsible gambling standards met or exceeded those implemented by state monopoly operators.EGBA argued that the benchmark study: [D]ismisses the argument that private sector companies are failing to provide consumers with similar levels of protection and responsible gaming practices.In fact the evidence shows that it is the private sector that is leading the field in this important area. 87e EGBA codes were also used to try to shape the industry's regulatory environment by being put forward as templates for how EU Member States could deal with problem gambling and how to conceive of responsible gambling.
In this period, many EU Member States were moving towards the liberalisation of their online gambling markets. 88eCOGRA's CEO explained that "self-regulation in the online gambling sector is an important tool and : : : [l]egislators should seek to draw upon the considerable and effective efforts made by the private sector". 89This attempt to pre-empt state regulation and embed a particular idea of responsible gambling was recognised by regulators.One regulator explained: [I]t's a : : : pre-emptive strike to avoid stricter binding government regulations.They are trying to anticipate the regulators who usually are really slow.If you look around Europe, the regulation is still quite behind the status of the market.So, they try to organise themselves to say, look, we [are] already doing stuff in a proper way, so don't impose [on] us additional rules.Or, if you want to impose rules, use ours. 90 EU Member States' online gambling markets began to open, there was a sense amongst many stakeholders that the European Commission would challenge national monopolies and engage in harmonisation. 91As this process of market liberalisation at the national level and integration at the EU level began, online gambling trade associations engaged in cooperation and collective action in the development of industry-wide responsible gambling codes of conduct.This collective action sought to shape their shifting regulatory environment and embed a particular understanding of responsible gambling at the national and EU level. is one driver of this development.The CEO of eCOGRA, for example, spoke about the code "taking the industry into a more caring, player-sensitive and responsible future". 92owever, market liberalisation was a more important driver of this collective action.RGA's CEO explained that "[t]he promotion of responsible gambling and the adoption of appropriate safeguards are fundamental to the long-term success of the online gambling industry" and that the International Responsible Gambling Code of Practice was an important collective resource to shape regulation in jurisdictions that were opening and regulating their markets. 93hilst from 2008 there was momentum behind a harmonised approach to responsible gambling at the EU level, the trust in and credibility of industry codes of conduct were challenged by EU institutions. 94In response, RGA, eCOGRA and EGBA developed the European Committee for Standardization (CEN) Workshop Agreement on Responsible Remote Gambling Measures in 2010. 95CEN Workshop Agreements are not official CEN standards, but the development of a CEN Workshop Agreement reframes the standard as no longer just an industry standard but a multi-stakeholder standard.
Online gambling trade associations used the CEN Workshop Agreement to shape Member States' regulation of gambling-related risk around the concept of responsible gambling.A trade association representative explained that, since 2011, the organisation had focused on the national level.
[F]or a long time we were all thinking there might be some sort of harmonised regime in Europe, that the Commission would be the real guardian of the treaty and of course it's never happened.So, we switched all our resources to Member States and just treated it as if there wasn't a European market. 96on publication of the CEN Workshop Agreement, EGBA's Secretary General spoke about how it will "inform many Member States currently regulating the market". 97eCOGRA's CEO explained to the European Parliament's International Market and Consumer Protection Committee that the CEN Workshop Agreement was "a building block for pan-EU regulation" that was designed to inform "policy makers of the standards required to maintain a responsible, safe and secure remote gambling environment". 98Indeed, a trade association representative explained that the CEN Workshop Agreement was "mainly for new licenced jurisdictions, but again, that helps get everyone to look and say: what do we want to do?What should the starting point be?" 99 The interviewee spoke about how, during the lobbying process at the national level, "we can go in and actually say, look, here's the revenues : : : All the other issues concerning problem gambling : : : and all those sorts of things, this is how you deal with all of that." 100 3. Collective action to shape the EU regulation of risk Online gambling trade associations also deployed the CEN Workshop Agreement in order to shape an understanding of "responsible gambling" at the EU Level.The CEN Workshop Agreement was published shortly before the European Commissioner for Internal Market and Services announced the Online Gambling Green Paper, which was published in March 2011. 101The Green Paper provided a framework for debate on the development of online gambling in the EU. 102The CEN Workshop Agreement was central in many of the consultation responses submitted by trade associations and online gambling operators.As the Chair of the Workshop Agreement put it in a submission to the European Parliament: Its publication is particularly timely in view of the green paper on online gambling that was announced by Commissioner Barnier : : : It will provide informed and fact-based input to the discussion on the improvement of the functioning of the Internal Market.Voluntary standardization activities are carried out in almost every field of economic activity.There is a tradition in the EU of voluntary standards complementing legislation : : : 103 In 2012, following Green Paper consultation, the European Commission published its online gambling action plan. 104he Commission's action plan noted that given the risks arising from online gambling, there was a need for measures to be taken at the EU level. 105The European Commission engaged in "soft" harmonisation through a non-binding Recommendation on Consumer Protection in Online Gambling. 106It is certain that the European Commission chose to use a Recommendation rather than other "harder" harmonising instruments, such as a Directive or Regulation, in order to sidestep both the European Parliament and the Council of the European Union.As the European Commission made clear, "a Commission Recommendation can be adopted immediately whereas proposals for legislation would have to be adopted by the EU's Council of Ministers and the European Parliament which can take time". 107What is perhaps more significant is that any form of "hard" harmonisation would have proved impossible given that the majority of Member States have been steadfast in their objection to the harmonisation of gambling regulation at the EU level. 108Online gambling trade associations used the CEN Workshop Agreement to try to shape the contents of the European Commission's Recommendation on Consumer Protection in Online Gambling.Cezanne explains how the CEN Workshop Agreement carries with it considerable weight in the political discourse surrounding the gambling sector at EU level.: : : In light of several non-legislative online gambling initiatives, which had been launched by the EU institutions, the agreement was popping up left, right and in the centre.: : : [T]his tool is meant to stay and will be raised by operators seeking to open up the European market. 109ring an interview, a regulator explained that while the contents of the Commission's Recommendation draws from different sources, the industry and its responsible gambling codes of conduct had been one source of influence. 110What is clear is that online gambling trade associations pushed the CEN Workshop Agreement as a model of responsible gambling and viewed the Commission's Recommendation as an important means through which they could seek to frame the concept of responsible gambling at the EU level and, by virtue of this, also at the Member State level.
While Recommendations may be non-binding in the formal sense, they have significant normative and discursive effects that can pre-empt and frame legislative processes at both the EU and Member State level.In Belgium's unsuccessful challenge to the legality of the Commission's Recommendation, Advocate General Bobek forcefully argued that Recommendations have the ability to articulate the norms before the actual legislative process takes place, which may even translate into unilateral pre-emption of the legislative process.It is not disputed that a recommendation has the ambition to induce compliance on the part of its addressees.Now if it is even partially successful, it will shape the range of conceivable (acceptable) normative solutions for the future.If, based on a recommendation, a number of EU institutions or Member States already comply, those actors will, in the legislative process that may potentially follow, naturally promote the legislative solution that they had already embraced.In this way, the soft law of today becomes the hard law of tomorrow. 111ven the potential normative and discursive force of a European Commission Recommendation, a regulator argued that, from their perspective, the Recommendation was an attempt by the European Commission to harmonise the online gambling market in the EU in a way that served only the interests of the online gambling industry. 112The regulator went on to argue that, "[f]rom our point of view, it's not protecting the consumer at all". 113he inability of gambling regulationthat is underpinned by the concept of "responsible gambling"to protect against individual and societal harms goes to the heart of what is at stake in this paper.Online gambling trade associations have deployed responsible gambling codes of practice in an attempt to shape their regulatory environment and to reproduce and embed a particular way of regulating gamblingrelated risk within their environment.In turn, states that have sought to develop their gambling industries, either through state monopolies or market liberalisation, have "embraced the concept of 'responsible gambling'" that aligns with the practices and discourses co-produced by online gambling trade associations. 114As Braithwaite notes, "[a] law that goes against the grain of business culture risks irrelevance; a law that crushes normative systems that naturally emerge in business can destroy virtue; a law that lets business norms take it over can destroy its own virtues". 115

VI. Conclusion
Why have online gambling trade associations sought to develop responsible gambling codes of practice despite the fact that the gambling industry actively seeks state regulation in order to authorise and legitimate its activities? 116In addressing this question, I traced how and why responsible gambling codes of conduct have been developed and used by online gambling trade associations against the backdrop of a changing legal and regulatory environment at both the national and EU level.While changes to the regulatory and legal environment create uncertainty, they also create moments of opportunity.I argued that online gambling trade associations have deployed responsible gambling codes of conduct at these particular moments of opportunity in attempts to shape their members' external environment and to reproduce and embed a particular understanding of how gamblingrelated risks should be regulated.
Responsible gambling codes of conduct are a mechanism through which online gambling trade associations seek to develop an industry morality and cultural infrastructure for the gambling industry.Not only are responsible gambling codes of conduct used to coordinate and constrain the actions of the gambling industry, they also are deployed to enhance the socio-political legitimacy of the industry and to embed a particular discourse within the industry's external environment that attempts to shape how we understand responsibility for gambling-related harm.As I noted in Section I, there is an important material element to the online gambling industry that means that we must take the regulatory environments of the states and jurisdictions seriously if we are to understand the activities of the online gambling industry. 117While the regulatory environment may limit what organisations can do, it can also authorise, justify, constitute and legitimise organisational forms and actions. 118Regulation constitutes gambling as "legal", "fair" and a "safe risk" and gambling providers as "licenced", "authorised" and "legal". 119t the birth of the industry, organisations such as eCOGRA developed responsible gambling codes in an attempt to build credibility and trust, which their offshore jurisdictions could not provide.As markets began to open in the EU, we see a flurry of activity in terms of the establishment of trade associations and responsible gambling codes of conduct.In the UK, trade associations such as IGGBA, ARGO and RGA were quick to create responsible gambling codes of conduct and to put them to work in seeking to build legitimacy and to influence how the industry would be regulated.They were concerned not only with the survival of the industry, but also with the regulatory environment of their members.As processes of market liberalisation continued at the national level and integration advanced at the EU level, trade associations again sought to put responsible gambling codes of conduct to work.Furthermore, we also see an intensification of cooperation between these organisations as the previous efforts of trade associations were called into question.
In developing and putting codes of conduct to work in an attempt to build legitimacy and influence their members' regulatory environment, online gambling trade associations have sought to frame and reproduce responsible gambling in a particular way that affirms values of individual choice, freedom and responsibility. 120This framing of responsible gambling "throws back" responsibility for managing risk onto the individual through its emphasis on "education, minimal interventions and self-management". 121In so doing, the responsible gambling discourse seeks to defocus attention away from restrictions on the supply of gambling products or the harmful nature of the products themselves.As van Schalkwyk and colleagues explain: Gambling discourses have long been dominated by individualised and often pathologised understandings that serve to maintain the status quo and that marginalise and conceal broader societal perspectives, such as the harmful effects of gambling products and gambling environments. 122 such, this paper argues that codes of conduct are used by online gambling trade associations as a key resource in attempts to construct, reproduce and embed a particular understanding of gambling and how gambling-related risks should be regulated in the multilevel regulatory environment in which their members operate.Responsible gambling codes of conduct play a central discursive role used not only to legitimate a contested industry, but also to affect and shape the regulatory environment of the online gambling industry.Here, although there has been growing consensus over the past decade that gambling should be understood as a public health issue and that gambling-related harms should be prevented and minimised through a public health approach, "'responsible gambling' remains the ethical underpinning for gambling regulation all over the world". 123 https://doi.org/10.1017/err.2023.

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Collective action to shape the national regulation of risk In 2008, RGA, eCOGRA and EBGA developed the International Responsible Gambling Code of Practice in cooperation with GamCare.During their initial discussions, the Portman Group explained how the alcohol industry sought to address social concerns about alcohol through industry-wide collective action.The desire to collectively legitimate the industry 86 Y Belanger, "Internet Gambling and the Kahnawà:ke First Nation" in R Williams et al (eds), Routledge International Handbook of Internet Gambling (Abingdon, Routledge 2012) p 326. 87 EGBA, "Press Release: Online Gaming and Betting: EU Private Industry Leads First Ever Benchmark Study on Responsible Gaming Practices" (EGBA, 2008) <http://web.archive.org/web/20081228143011/http://www.egba.eu/en/press/417> (last accessed 27 October 2022). 88For a detailed account of changes in European and Member State regulation during this period, see C Fijnaut and A Littler (eds), The Regulation of Gambling: European and National Perspectives (Leiden, Brill 2006); J Hörnle and B Zammit, Cross-Border Online Gambling Law and Policy (Cheltenham, Edward Elgar 2010); A Littler, Member States versus the European Union: The Regulation of Gambling (Leiden, Martinus Nijhoff 2011). 89ibid. 90Interview EU-29. 91JC Örnberg and T Tammi, "Gambling Problems as a Political Framing: Safeguarding the Monopolies in Finland and Sweden" (2011) 26 Journal of Gambling Issues 110; Villeneuve, supra, note 1, 417. https://doi.org/10.1017/err.2023. https://doi.org/10.1017/err.2023.
State Gambling Complex" (2015) 23 Addiction Research & Theory 1, 2. 5 B Beem and J Mikler, "National Regulations for a Borderless Industry: US versus UK Approaches to Online Gambling" (2011) 30 Policy and Society 161, 163; N Zborowska et al, "Regulation and Reputation: The Gibraltar Approach" in R Williams et al (eds), Routledge International Handbook of Internet Gambling (Abingdon, Routledge 2012) p 104; C Scott, "Regulatory Innovation and the Online Consumer" (2004) 26 Law & Policy 477.
Donal Casey