The Committee for Advertising Practice (CAP) has announced tough new rules for gambling advertising.
The new rules, set to come into force on 1 October 2022, state that gambling and lottery adverts must not “be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture. They must not include a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those under 18”. The new test, which has been dubbed the "strong appeal test" is a change from the existing rules that adverts must not be of "particular appeal" to children.
CAP state that "strong appeal" is distinct from "particular appeal", because it does not rely on a comparison with the likely appeal of the content to adults.
This change is designed to prohibit popular elements of youth culture such as sports, video games, esports and music from being used in gambling advertisements. The Advertising Standards Authority (ASA) will be responsible for enforcement and will begin to consider complaints using new guidance (the Guidance) from 1 October 2022 that has also been introduced.
This change will set the bar higher for advertisers, who will be required to show that an advert, together with the persons and elements used in the advert, are unlikely to strongly appeal to under-18s. In practice, this means that gambling ads will not be permitted to feature:
- Topflight footballers and footballers with a considerable following among under-18 on social media.
- All sportspeople well-known to under-18s, including sportspeople with a considerable volume of under-18 followers on social media.
- References to video game content and gameplay popular with under-18s.
- Stars from reality shows popular with under-18s, such as Love Island.
There are six exceptions to the new strong appeal test:
- Advertising products in general terms - Where appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s, advertising for licensed gambling and lottery products associated with activities that are likely to strongly appeal to under-18s (for instance, certain sports or playing video games) may promote the licensed product in general terms. The fact that the licensed product is associated with activities with ‘strong’ appeal to under-18s alone will not prohibit the advert.
Advertisers should note that the focus of the rule is principally concerned with imagery, themes and characters – the strong appeal test is not intended to restrict simple text or audio references to sports, good causes, teams or individuals who are generally held to be popular with under-18s.
- Generic depictions of gambling products - Advertising for gambling products that have characteristics likely to be of ‘strong’ appeal to under-18s (like certain online games) may include generic depictions or references to the creative content or gameplay of the product, e.g. depicting generic equipment associated with the sport or activity like a ball or goalposts. However, such generic depictions must be suitable and not, of themselves, likely to appeal strongly to under-18s.
- Logos and other identifiers - the logo of a sports team, sports tournament, esports game, or other event may be used in gambling adverts. Advertisers should note that, where this use is not authorised, issues relating to IP rights may arise and would need to be considered.
- Advertiser's branding - This is a specific exemption covering material relating specifically to an advertiser’s brand identity (for example, brand logos or livery). This does not, however, extend to brand characters, which will be assessed by the ASA under the "strong appeal" test set out in the Guidance.
- Lottery prizes and good causes - Where the subject of a lotteries product is of strong appeal to under-18s, this exception allows for ads to depict the good causes benefitting from lottery funding, like sporting activities for disadvantaged children. It also allows the depiction of large prizes (like cash jackpots) and other items likely to appeal strongly to children that may sometimes be prizes in smaller lotteries (like bikes or games consoles). However, the advert must not feature a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under-18.
- Certain persons and characters - Gambling advertisements can make use of persons or characters associated with gambling subjects of ‘strong’ appeal to under-18s, like football, where marketers can satisfy the criteria set out in the Guidance (sections 16 – 18) covering the application of the 'strong' appeal test to persons or characters.
What will advertisers need to prove under the new Guidance?
Advertisers must satisfy themselves to a 'high degree of confidence' that the advert is unlikely to appeal strongly to under-18s before the ad is published. In the event that the ASA investigates a potential breach, it will expect to see a detailed assessment and documentary substantiation as to why the marketer considered the advert would not appeal strongly to under-18s.
CAP have identified anyone with direct connections to under-18s through their role as high risk for inclusion in gambling adverts, such as children’s TV presenters or film stars, certain professional footballers or managers, leading esports players and influencers with significant under-18 following on social media.
However, the Guidance identifies "long-retired sportspeople", and "sportspeople involved in clearly adult-orientated sports (e.g. darts, snooker, golf, horseracing and motorsports)" as being less of a risk to use in adverts, although brands will still be required to satisfy themselves that those individuals do not appeal strongly to under-18s.
Of course, a large group of sportspeople or celebrities may fall somewhere in-between, where it may not always be immediately apparent to gambling advertisers if the person in question is likely to meet the strong appeal test.
Whatever the case may be, it seems clear that the new rule will require marketing teams to take additional steps. When gambling companies are considering who to feature in their ads, who to collaborate with, or who to appoint as brand ambassadors, it would appear they must now go through a careful process of assessing and gathering evidence to prove that the person does not strongly appeal to under- 18s, and indeed must keep this under constant review. A person who did not strongly appeal to under-18s one day could suddenly gather a youth following if they appear on a reality TV show, for example.
It is important to note that the ASA will consider social media follower demographics as important, which could help to assess a person’s level of appeal to under-18s. A general high social media following that "attracts a significant absolute number of under 18 followers" is likely to be considered an indicator of strong appeal to under-18s by the ASA.
Advertisers should attach more weight to present and recent activities. Personalities whose appeal has shifted significantly over time away from under-18s are less likely to be restricted under the strong appeal test.
What do advertisers need to consider in anticipation of the new Guidance
Gambling companies and advertisers will need to re-evaluate proposed or existing contractual relationships with persons who are likely to meet the strong appeal test towards under-18s. Unless gambling companies can satisfy themselves (and the ASA) that the person in question is unlikely to appeal strongly to under-18s, then gambling companies will be unable to feature them in their adverts from 1 October 2022. This is likely to impact a number of endorsement deals and brand ambassador relationships and parties will need to carefully consider the extent of their rights to terminate (including if the ASA takes a view that differs from that of the gambling company as regards whether the advert has a strong appeal to under-18s or not) and the nature and scope of any liabilities that might arise in the event that the contract is required to be terminated in light of these changes to the CAP and BCAP codes. Whilst the new rules come into effect on 1st October 2022, CAP urges marketers to bring new campaigns into compliance as soon as they can.
CAP has stated its commitment to review the implementation of the Guidance after 12 months.