On 5 April, the Committee for Advertising Practice (CAP) released new rules designed to protect young people and vulnerable audiences from advertising for gambling products. Advertisers have until 1 October 2022 to comply with the change to the CAP Code (the New Rules). This timing is significant as it is during the build-up to the FIFA World Cup in Qatar – an event which traditionally sees a heavy spend on marketing to attract gambling customers.
The New Rules
Currently, rule 16.3.12 prohibits an ad from being ‘likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture’ (emphasis added). The New Rules strengthen the language used, stating an ad must not ‘be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture’ (emphasis added). Similar changes have been made to the Broadcast Advertising Code (BCAP Code).
The New Rules build on the existing rules surrounding the targeting and scheduling of ads and requirements that celebrities and anyone playing a significant role in a gambling ad must be 25 years old or over.
The ‘strong appeal’ test means that any content which has a strong appeal to under-18s is prohibited, regardless of how it is viewed by adults. Therefore, the New Rules will restrict the range of personalities gambling ads can feature. For example, sportspeople well-known to under-18s appearing in gambling-related ads would likely fall foul of the New Rules.
CAP admits that evaluating the appeal of a marketing communication can be subjective. Consequently, CAP has released guidance indicating what forms they consider ‘strong appeal’ to take, including:
- content linked to activities that are very popular or common among younger people (both in terms of their direct participation and viewing);
- popular personalities who are likely to influence under-18s;
- characters with which under-18s are likely to have a particular affinity like cartoons or characters from video games popular with them;
- characteristics and behaviour of persons or characters appearing in advertising like humour, language or dress that are linked to younger people; and
- creative techniques like music, graphics and animation styles closely connected to youth culture.
When applying this guidance, one might consider that the subject matter of the bet e.g. football or esports is likely to be popular with under-18s. However, the New Rules which expressly state that: “Where appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s, this rule does not prevent the advertising of gambling products associated with activities that are themselves of strong appeal to under-18s (for instance, certain sports or playing video games).” The guidance gives some examples of what those appropriate steps might be.
A targeting exemption is also applicable if the advertiser is able to verify the age of an audience and exclude under-18s from seeing it. It is unlikely that self-verification will be sufficient to meet this requirement. For example, the ruling in LC International Ltd t/a Gala Spins held that self-reporting your age was insufficient to ensure under-18s did not see the ad, due to the risk of misreporting age.
Shahriar Coupal, Director of CAP, has heralded these changes as a ‘new era’ for gambling ads. The New Rules could also have an impact on the sponsorship of sport by gambling companies. Whilst the ASA’s remit does not extend to sponsorship itself, it does cover advertisements issued as a result of a sponsorship arrangement. If gambling operators who sponsor sports teams can no longer use imagery of players from the teams or competitions they are sponsoring for UK-facing advertising, then this could be a material factor for gambling sponsors who are seeking to appeal to UK audiences. The CAP Code does not, however, apply to advertising which is not visible in the UK.
Of course, as gambling operators and sports organisations will be aware, there remains a possibility that the ongoing Gambling Act Review could have a much broader impact on gambling advertising – and on sports sponsorship – in the UK than the New Rules.