On 1 November 2021, revisions to the Committee of Advertising Practice (CAP) and Broadcast Committee of Advertising Practice (BCAP) Guidance on "Gambling advertising: responsibility and problem gambling" will come into effect.
The revisions to the Guidance were proposed by CAP/BCAP as part of a consultation published in October 2020, which responded to the findings of GambleAware's Final Synthesis Report. The consultation is ongoing and its findings are expected to be published by the end of 2021, but an interim statement on its progress has been published.
In summary, the consultation proposed the following measures in response to certain findings in GambleAware's Report, aimed at providing increased advertising protections for consumers:
- Certain revisions to the Guidance (see below).
- New advertising rules to restrict the creative content of gambling and lottery ads, to further limit their potential to appeal to under-18s.
- Inviting feedback on CAP/BCAP’s assessment of GambleAware's recommendation for considering new restrictions on the scheduling, placement and targeting of gambling ads.
- Updating the introductory paragraphs of the gambling sections of the CAP Code and BCAP Code to make them clearer.
Revisions to the Guidance
CAP and BCAP were keen to implement revisions to the Guidance, in order to prioritise increased advertising protections for adult audiences. The Guidance already provided that ads should avoid approaches that give erroneous perceptions of the levels of risk involved in, or the extent of a gambler's control over, gambling, but the revisions to the Guidance clarify that the following approaches are likely to encourage socially irresponsible or harmful behaviour:
- Presenting complex bets or other gambling products in a way that emphasises the skill, knowledge or intelligence involved to suggest, inappropriately, a level of control that is unlikely to apply in practice.
- Presenting gambling as a way to be part of a community based on skill.
- Stating or implying that offers such as those involving money back, ‘free’ bets or bonuses, or enhanced odds, are a way to reduce risk.
One question arising from these revised provisions is what will constitute a "complex bet", and a uniform definition may be elusive.
In order to provide further guidance for the industry, the GambleAware Report referred to two examples of what may be considered as "complex bets": accumulators and odds boosts. It identified these examples as products that are particularly attractive to high risk or frequent gamblers, which may appeal to their perceived sense of expertise and knowledge. For example, as accumulator products include multiple elements in the making of the bet, with consumers making several selections in order to participate in an accumulator offer, those who use such products may be unduly attracted by ads attempting to exaggerate the role of skill and knowledge involved in determining the outcome of these bets. They may therefore choose a more complex product over a straight-forward one. Advertisers should take care when advertising such products, to ensure compliance with the Guidance.
In relation to the guidance against presenting gambling as a way of being part of a community based on skill, some consultation respondents were concerned that this would restrict the promotion of products that involve an element of skill and wider participation, e.g. poker or bingo products. CAP/BCAP have clarified that this provision will apply to advertising content and messaging which suggests that participation in gambling can make someone feel like they are part of a wider community. However, it is not intended to restrict the advertising of products that involve an element of skill and wider participation or features of an operator's service that allow players to socialise with others.
The section of the Guidance addressing advertising practices that create a sense of impulsiveness and urgency has also been revised, to include additional examples of practices that could pressure consumers into participating when they otherwise would not: specifically time-limited offers that encourage consumers to participate before the odds change, and ads that place an emphasis on the immediacy of an event.
CAP/BCAP have helpfully clarified that the revised Guidance does not restrict the advertising of offers like live-odds or in-play betting, and simply stating the timing of an event is also unlikely to be problematic in and of itself. The revisions are intended to restrict advertising claims and imagery that place an unjustifiable sense of urgency on the making of a bet.
The section of the Guidance that restricts advertisers from trivialising gambling has also been revised to include additional examples of practices that advertisers should avoid. In particular, advertisers should not use humour or light-heartedness to play down the risks of gambling, and should avoid unrealistic portrayals of winners.
Some consultation respondents were critical of these proposals, as it is widely accepted that gambling products are entertainment products and the industry should be able to present them in an entertaining way; any move to prohibit humour in gambling ads may be regarded as disproportionate. In response, CAP/BCAP have highlighted that the intention of the revised Guidance is not to prohibit humorous content in gambling ads in general, rather the emphasis is on preventing advertisers from using humour to play down the risks associated with gambling. For example, jokes mitigating the risks of gambling that directly relate to a decision to participate, or which trivialise betting, would not be permitted.
The revised Guidance also includes additional provisions regarding marketing approaches that play on people’s financial concerns. In addition to the existing provisions, marketers should now exercise "heightened caution" when depicting groups that are likely to experience financial pressures, e.g. students. Further, when portraying the rewards of gambling (which should already be reasonable and indicative of the rewards that can be obtained through responsible play), advertisers should avoid implying that a character has won a significant prize with little effort, time or outlay, and should not take advantage of consumers' hopes of winning or replicating the success depicted in the ad.
In this regard, CAP/BCAP wants advertisers to recognise the distinction between simply presenting a large prize or reward that can be won (e.g. a jackpot) and the depiction of someone who has just won a large prize or reward or is in the act of winning it (with the latter no longer being considered acceptable).
Operators and advertisers should carefully consider the revised Guidance. Although the Guidance does not strictly bind the Advertising Standards Authority (ASA), it does set expectations regarding marketing approaches that are likely to be considered unacceptable, and it will be used as a key tool in the ASA's interpretation of the CAP and BCAP Code rules.
A practical tip for operators and advertisers to comply with the revised Guidance is to create or update a list of keywords/phrases that should not be used in advertising, or where caution should be exercised. This may include both internal lists and external lists used to monitor affiliate activity. For example, the use of claims or phrases such as "effortless", "risk-free" and "easy win" in advertising may create an erroneous perception of risk or control among consumers and should be avoided.
Of course, maintaining such a list of keywords/phrases should be done in conjunction with other procedures that mitigate the risk of non-compliance with the Guidance, including implementing updated marketing policies that reflect the revised Guidance and revising training materials for relevant staff to identify instances of non-compliance.
Please contact the Betting and Gaming team at Mishcon de Reya to discuss the revised Guidance in more detail.