Attorney General's Opinion
Attorney General, Richard Blumenthal
March 12, 2003
Susan G. Townsley
Executive Director
Division of Special Revenue
555 Russell Road
Newington, CT 06111
Dear Ms. Townsley:
Thank you for arranging our meeting with the Connecticut Lottery Corporation to discuss my concerns with the new lottery game entitled "Treasure Tower." Following my viewing of the game, and our helpful round-table discussion, I appreciate the thorough review this game has received from your agency. However, I continue to have grave concerns about the legality of this game and its design characteristics that are very likely to appeal directly to young children. Accordingly, I must and I hereby advise you to withdraw approval for the distribution and implementation of this game, unless and until the legislature passes legislation allowing this type of gaming.
My concerns are based on two points. First, the game appears to be a video lottery, which has been banned in Connecticut since 1983. Secondly, it has design features that appeal directly to young children. The use of cartoon characters in this format and story line seems likely to entice children to gambling. As is well known, marketing with cartoon characters has a special attraction to children, which is the reason our settlement of litigation against the tobacco industry explicitly banned such cartoon characters in advertisements for tobacco products. In this game, gambling becomes a cartoon treasure hunt called, not coincidentally, "Treasure Tower." The game's art, content and pace also seem strikingly similar to computer games designed to teach children how to read and count. Despite the best intentions of the Division of Special Revenue and the Connecticut Lottery Corporation, the conclusion is inescapable that this game will have the direct effect of introducing children to gambling and making it fun. While it is abundantly clear that this was not your intention or purpose, this outcome, no matter how inadvertent1, is contrary to the law and your agency's express charge. Conn. Gen. Stat. § 12-568a(8).
State statutes authorize the Connecticut Lottery Corporation (CLC) to introduce new lottery games, subject to the approval of your agency, the Division of Special Revenue (DOSR). CLC is not authorized to introduce new games which do not meet the statutory definition of lottery games. Conn. Gen. Stat. § 12-806(b)(4). Your agency is required to review and approve the procedures for this game prior to implementation. Reg. Sec. 12-568a-2(b). Approval of the procedures is contingent on the determination that this game is a "lottery" within the scope of permitted gaming authorized by the enabling statutes.
The proposed new game consists of a set of four scratch off lottery tickets and a CD-ROM to be sold for $15.00. Each ticket bears the legend "Treasure Tower. Scratch Off Game With CD-ROM." To play the game, the purchaser is instructed to scratch off the coating to reveal an access code, load the CD-ROM into a personal computer, and enter the access code to start the game:
Treasure Tower ticket
Significantly, the player is unable to tell from the ticket, even after it is scratched, whether it is a winner or not. The ticket itself displays only code numbers. The player must play the game to tell if the ticket is a winner or not. Alternatively, the player can surrender the ticket to a lottery agent who can research the ticket by entering the validating codes and scanning a bar code on the back of the ticket into a lottery computer, but the player cannot unilaterally determine if the ticket is a winner until after the game is played. Moreover, the instructions, marketing and design incentives require or encourage the playing of the game.
The game itself consists of a cartoon character who, in the opening installation sequence, travels by camel across a desert to a Taj-Mahal type tower in a scene reminiscent of the opening scenes from Disney's hugely popular children's animated movie, Aladdin. The traveler meets a guide who invites him to go on a treasure hunt through the tower. The player makes the traveler go from room to room, uncovering treasures using the computer cursor. When the traveler finds three matching treasures, the player can win from $4.00 to $25,000.00.
With regard to determining whether a game is authorized as a "lottery" under Connecticut law, we have often noted in the past that the specific elements of the term "lottery" are nowhere defined in the general statutes. See Conn. Gen. Stat. § 12-801(3). However, we have consistently observed, in prior opinions dealing with the subject, and relying upon clearly established judicial precedent, that the term "lottery" must be accorded its common and ordinary meaning. See Ziperstein v. Tax Commissioner, 178 Conn. 493, 500, 423 A.2d 129 (1979); Jones v. Civil Service Commission, 175 Conn. 504, 509, 400 A.2d 721 (1978); Carlson v. Kozlowski, 172 Conn. 263, 266, 374 A.2d 207 (1977). We have based our prior holdings upon a firm understanding that the term lottery, as used in the Connecticut General Statutes, is employed strictly in its traditional sense:
92 Conn. Op. Atty. Gen. (1/24/92) at 2 (Letter to Executive Director Louziotis); 83 Conn. Op. Atty. Gen. (9/21/83) (Letter to Executive Director Oppenheimer). See also 86 Conn. Op. Atty. Gen. 24 (1986); 83 Conn. Op. Atty. Gen. (12/2/83). In other words, as contemplated by Connecticut statutes, a "lottery” is a game in which participants purchase "tickets" which give them an opportunity to win a prize based solely upon random chance. 83 Conn. Op. Atty. Gen. (12/2/83)(citations omitted).
Most importantly for the instant case, in the 1983 Opinion we reviewed the possibility of the introduction of video lottery games under the predecessor lottery statutes.2 In video lottery games, the player, for a predetermined sum of money, gets to "play" whatever game design the machine offers or he or she chooses. The player can then "play" the game. Upon completion of the game, the video display would indicate whether the player had won or lost. We concluded that this type of game held the essential elements of prize, consideration and chance, but it failed to comply with Connecticut law because it lacked one other essential component, i.e. it was not ticket dispositive. "In short, in a true lottery, it is the ticket that gives the player the chance to win, and until one possesses a ticket, one cannot know whether he or she has won." 83 Conn. Op. Atty. Gen. (12/2/83) at p. 3. In that opinion, we also noted, "… lotteries involve multiple participants competing for the chance possession of the winning lot or lots. The concept of a single player confronting a machine is inconsistent with this common and longstanding understanding." Id. at p. 4.
Similarly, in the instant case, the player cannot tell whether he or she won until the game is played, absent agent research. As in a video lottery, the incentive is to play the game to determine whether the player has won. This game, therefore, seems to be in the nature of a video lottery that is not authorized by the statutes.
The CLC, in our meeting, correctly pointed out that the Treasure Tower game contains several features which make it different from the video game tested in the 1983 Opinion. Features have been added to make it more like a traditional lottery than the coin operated game in issue in 1983. However, these distinctions do not make it legal. The 1983 Opinion did not prohibit only one type of video lottery nor did it suggest that slight modifications would change the legal outcome. It disallowed the entire video game playstyle. Accordingly, when the lottery suggested changes in 1985 to make the game approximate "electronic facsimiles" of existing, authorized, lottery games, we ruled, "Close approximation, however, is not sufficient to authorize such a video lottery under existing law…" 1985 Conn. Op. Atty. Gen. (5/13/85) (Letter to Sen. Robertson).
Three principles can be culled from these rulings: (1) Since the legislature has not specifically defined the term "lottery", we find authorization only for traditional games involving sales of tickets, including instant tickets, drawings by lot, and prize winning by chance; (2) the legislative moratorium on new gaming venues, and the fact that legalized gaming is an exception to the state criminal laws, compel us to strictly construe the allowance; (3) if different playstyles, such as video or computer games, are to be introduced, the legislature can, and must pass legislation clearly allowing such a new type of gaming. Aside from the game's failure to meet these legal requirements for a lottery under Connecticut law, I am most troubled by the design and marketing features of the game, which will likely and directly appeal to young children. Although adults may be required to buy the product, the game entices young children to play it on their home computers using the concept of a treasure hunt, with the promise of cash prizes to winners. Our review of “Treasure Tower”, combined with our experience with advertising practices and marketing studies in other industries, lead inescapably to the conclusion that this cartoon game will appeal to children and encourage them to gamble. One of the primary responsibilities of your agency is to limit advertising and market content of the lottery so as to prevent gambling by minors. Conn. Gen. Stat. §12-568a(8). Games that violate this legislative direction are illegal, even if that is not the intention of the game manufacturer and certainly, I am sure, not the intention of the Division of Special Revenue and the Connecticut Lottery Corporation.
I know you share my concern that the lottery products offered in Connecticut must meet the strictest legal tests, and conform to the legislative mandate to prevent gambling by minors. I also appreciate the thorough review that you and your staff gave this game, but I must conclude that it is not permitted under existing legislation. Accordingly, I advise you to immediately withdraw approval for this game.
Very truly yours,
RICHARD BLUMENTHAL
ATTORNEY GENERAL
1The game contains a parental control feature that allows parents to create a secret password to play the game. Uninstalling the game and then re-installing it can easily bypass this feature.
2In 1983, the lottery was operated by the State. Today it is operated by the Connecticut Lottery Corporation, a quasi-public corporation. Conn. Gen. Stat. § 12-802(a). However, the pertinent statutes contain the same requirements.