Legal & RegulatoryIndustry

Ask the expert Q&A: How can operators comply with the new CAP guidance on advertising?

Earlier this month the Advertising Standards Authority (ASA) announced new rules that will dramatically restrict the use of sportspeople and celebrities in gambling advertising.

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Earlier this month the Advertising Standards Authority (ASA) announced new rules that will dramatically restrict the use of sportspeople and celebrities in gambling advertising.

The UK’s advertising regulator said the changes, which will come into force in October, were aimed at safeguarding young people and vulnerable people. 

The announcement followed a review by the watchdog’s Committee of Advertising Practice (CAP), which ran a consultation on the issue that began in October 2020.

Current rules state that gambling ads cannot be of “particular” appeal to children or young persons. But this will change to say that gambling advertising cannot be “of strong appeal to children or young persons, especially by reflecting or being associated with youth culture”.

CAP gave several examples of the types of personalities that will no longer be allowed to be used in gambling advertising, with the list including “top-flight footballers and footballers with a considerable following among under-18 on social media."

This will have a significant impact on the ability of gambling companies to advertise before the World Cup in Qatar in November. 

Other examples given included sportspeople well-known to under-18s and stars from reality shows popular with under-18s, with Love Island cited as an example.

Felix Faulkner, Solicitor at Poppleston Allen, drills down into the detail of the guidance to explain how the new rules will impact gambling operators.

How significant is the change in wording from ‘of particular appeal’ to ‘of strong appeal’ to children? 

It’s significant as many more people will fit into the category of being of strong appeal than fit into the category of being of particular appeal. CAP described it as a ‘step-change’ and I’d agree with that. 

CAP had previously published advice that if a marketer could demonstrate that less than 25% of someone’s target market were under-18, it was generally considered they were not of particular appeal to children. Thus, if a person was mostly of appeal to adults but also well-known to children, a gambling company would probably have been safe to use them in adverts. 

It now says people must not have a strong appeal to children regardless of their appeal to adults. There is a degree of subjectivity and in practice it is a matter of interpretation, but if someone has millions of followers on social media, they are clearly going to be of strong appeal to a lot of people, including children. 

How will operators be expected to decide if someone is of ‘strong appeal’ and how does this compare to the current guidelines? 

The current guidance states that people featuring in gambling adverts should not be under-25 or appear to be under-25 (with limited exceptions), and that guidance will remain. Beyond that, the ASA concedes determining strong appeal can be somewhat subjective and has therefore provided some detailed guidance. It says gambling companies should avoid:

  • 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.

Of these, it’s the “popular personalities who are likely to influence under-18s” that represent the biggest change, and that is likely to cause gambling companies to have to change their advertising strategies. 

How exactly does one determine which personalities might influence under-18s? Couldn’t the new rules potentially be applied to all celebrities?  

I don’t think the ASA intends to limit famous people being used full stop, but rather to limit the use of those stars who are seen to be predominantly attractive to the younger generation.

The ASA has broken the various types of people down into high, moderate and low risk, and these categories should prove instructive to marketers. The high-risk category includes children’s TV presenters, film stars, those with a significant under-18 following on social media, high-level football stars, and prominent sportspeople from other sports. 

Top-flight football players from Premier League clubs and high-profile European clubs, such as Barcelona and PSG, fall within the high-risk category, largely because children like to watch football and play video games such as FIFA. Managers of these clubs are further caught. Footballers from teams outside the top-flight and with lower European/world profiles are to be assessed individually based on their media profile and fall within the moderate-risk category. All other footballers at lower league clubs are categorised as low-risk, such as the team I support, Port Vale!

The ASA has broken the various types of people down into high, moderate and low risk, and these categories should prove instructive to marketers

Does it rule out the use of any well-known sports stars in gambling advertising then?

Not necessarily. The ASA puts certain sportspeople in the low-risk category, namely those involved in adult-oriented sports, for example, darts, snooker, golf, horse racing and motorsports. It also states elsewhere in the guidance that sports, “such as horse racing, greyhound racing, darts, snooker, boxing, motorsports and golf are more adult-oriented and unlikely to be of inherent ‘strong’ appeal”. It wouldn’t really make sense to argue something like horse racing was of strong appeal to children because the entire industry is centred around betting, which is an adult activity. 

But while football poses an obvious risk and horse racing is less risky, other sports will have more grey areas. A long-retired tennis player now best known for commentary might be acceptable; Emma Raducanu would not be due to her own age and her influence on younger generations. 

What advice would you give to companies planning advertising campaigns at the moment?

My advice would be to err on the side of caution and follow the guidelines closely. When deciding whether to use a specific individual in an advertisement, operators should always revert to the crux of the reason CAP has made this amendment: to safeguard young people. 

The ASA has stated it expects marketers to have a “high degree of confidence” any advert will not be of strong appeal to under-18s, so evidence of robust research will be vital. It’s worth noting that the new guidance on ‘strong’ appeal does not apply in circumstances where the recipients of an ad have been age-gated, so companies may wish to restrict some adverts to such audiences to be on the safe side. 

If operators have concerns about the use of a potential individual in advertisements, the ASA provides a copy advice service through its website, which might be able to provide a more bespoke and tailored answer than the new guidance.

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