Gambling Advertising: ASA and CAP move the goal posts for footballers and celebs

More specifically, the rules that previously stated that gambling advertisements must not have "particular appeal" to under 18 year-olds will be amended to say that gambling ads must not have "strong appeal" to under 18 year-olds. It doesn't sound like a big change - in fact it sounds a bit like splitting hairs - but the effect of this change will be very significant.

The current rules already require that celebrities and anyone playing a significant role in a gambling ad must be 25 years old or over, and that rule will remain. The rules about how gambling ads are targeted will also remain, including the current scheduling restrictions.

But under the current rules, gambling advertisements can feature celebrities and footballers who might be well known to under 18 year-olds but don't have a "particular appeal" to under 18 year-olds, because the vast majority of their fans are adults. The test was often taken to mean that if a celebrity or footballer has more appeal to adults than to children, they are likely to be ok to use in a gambling ad - their inclusion doesn't automatically mean the ad has particular appeal to children.

One barometer for this was the proportion of the celebrity or footballer's fans or followers on social media. If 25% or less of their fans and followers were under 18, they could say that they didn't have particular appeal to children and could feature in gambling advertisements.

However, under the new rules which will come into effect on 1 October 2022, the test will be stricter. From October 2022 onwards, ads must not have a 'strong appeal' to under 18s, regardless of the ad's appeal to adults. So, the ASA will focus only on whether there is a strong appeal to children - whether or not they appeal to adults too, will be irrelevant.

The ASA concedes that "determining the likely appeal of a marketing communication is not always straightforward and is, to an extent, subjective. CAP and BCAP’s appeal rules are intended to establish a test that allows marketers and the ASA to apply restrictions on creative content in a structured and consistent manner." Advertising approaches or pieces of creative content of ‘strong’ appeal to under-18s can take a variety of forms, the ASA lists the following examples:

• 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"

This means that celebrities from shows such as Love Island will no longer be allowed to appear in gambling advertisements - but it also has an impact on which sports stars can appear in such ads. Read on to find out more.

High risk content

The ASA provided the following examples of high-risk types of content that should be avoided:

• Animation

• Child-oriented cartoon content or animated styles

• Characters like 'cuddly’ or ‘cute’ animals, princesses or pirates with exaggerated features

• Common fairy tales, like Little Red Ridinghood, and Hansel and Gretel

• Cultural characters like Santa Claus, the Tooth Fairy and the Easter Bunny

• Video gaming references

• Content related to eSports popular with under-18s or themes/features like loot boxes or skins

• Characters and graphic styles (including gameplay sequences) similar to video games popular with under-18s

• Youth-related content

• Clothing styles that are obviously youth-oriented

• Music by younger artists or those popular with under-18s

• Youth culture themes like having disregard for authority or social norms, or teenage rebelliousness

Moving the goal posts

Many gambling companies will be concerned that the ASA's latest guidance states that "some ‘activities’ that relate directly to the gambling product advertised are considered to have inherent strong appeal to under-18s and therefore fall under the prohibition, unless appropriate steps have been taken to limit the potential for the ad to appeal strongly to under-18s".

The ASA says that betting ads on subjects like football, eSports popular with under-18s, and certain prominent events in other sports will fall into this category.

So the ASA approaches betting ads on subjects like football from the point of view of being likely to be inherently in breach unless the advertiser can persuade the ASA they should not be... this is a radical change in approach towards one of the most popular themes for UK sports betting adverts.

As a lifeline, the ASA says that to help meet the requirement to limit the potential for these ads to appeal strongly to under-18s, references to ‘activities’ that are the subject of the gambling product being advertised must be limited to:

• Text or audio references to the activity/product

• Generic depictions of the sport or game

• Logos of teams/competitions that are subject of a product

• Advertisers brand logos/identifiers

• Lottery prizes and good causes

• Limited use of persons or characters who pass the test set out in the guidance.

The ASA goes on to say that advertisers must consider carefully their casting of individuals or characters to ensure they are unlikely to have strong appeal to under-18s, including by assessing the:

• roles or activities they are associated with (including potential for them to be viewed in an aspirational or influential way by under-18s);

• personal profile and following of the person or character (including by reference to social media follower demographics); and

• the audience or audiences for the roles and activities for which a person or character is known.

The ASA goes further, and sets out high risk, moderate risk and low risk categories of individuals:

High risk

• Anyone with direct connections to under-18s through their role like children’s TV presenters or film stars

• Anyone with a significant under-18 following on social media

• UK footballers who play for top clubs, UK national teams or in high-profile competitions – this would apply also to managers

• Non-UK ‘star’ footballers particularly those at top European clubs – this would apply also to managers

• Other prominent sportspeople involved in sports like cricket, tennis and rugby that, at the highest levels, have a significant national profile

• Leading eSports players

Moderate risk

• Footballers from teams outside the top-flight will be assessed on the basis of their social and other media profile

• Footballers with lower profiles at top Euro/world clubs might be acceptable

• Retired footballers who have moved into punditry/commentary will be assessed on the basis of their social and other media profile.

• Other eSports players dependent on their social media and general profile o Sportspeople involved in clearly adult-oriented sports who are notable ‘stars’ with significant social media and general profiles making them well-known to under-18s

• A small but notable following of under-18s on social media will be considered alongside the personality’s general profile and could contribute to an ASA decision to categorise the individual as being of ‘strong’ appeal

Low risk

• Footballers at lower league and non-league clubs

• Footballers at lesser Euro/world clubs

• A long-retired footballer now known for punditry/commentary

• Sportspeople involved in sports like cricket, tennis and rugby that don’t have a significant role in the sport or general profile

• Sportspeople involved in clearly adult-oriented sports (e.g. darts, snooker, golf, horseracing, and motorsports).

In practice therefore, from 1 October 2022, a world famous manager like Jose Mourinho will no longer be able to feature in widely popularised TV betting adverts (as he does today) on the basis that a ‘non-UK star manager’ is expressly considered to be “high risk” by the ASA. Even the likes of Harry Redknapp (who last managed in 2017) or Michael Owen (who retired in 2013) – both of whom are more frequently seen in the comfort of a studio armchair these days – are still likely to fall into the “moderate risk” category given their significant social and public-facing media profiles.

It's worth mentioning that under section E.8 of the FA's Betting Rules (set out in the FA Handbook), any active player, manager, match official or other 'Participant' (as defined) is prohibited, when acting in a personal capacity, from advertising or promoting any betting activity that the Participant is prohibited from engaging in him/herself under the FA Betting Rules (i.e. betting on any football match). However, this ASA guidance takes things one step further - essentially applying a blanket prohibition on anyone identified as "high risk" above (not just individuals included in the FA’s definition of 'Participant') to prevent them appearing in all forms of gambling and lottery ads.

So football’s a problem – but what about other Sports?

The ASA mentions in the guidance that other national sports like cricket and rugby have, in comparison to football, low-to-moderate levels of participation and organisational infrastructure among under-18s. However, whilst these sports are unlikely to be of ‘strong’ appeal to the same proportion as football, these sports’ national teams and key tournaments attract high media profiles (including a greater focus on younger people’s involvement and viewership) and are therefore likely to be considered of inherent ‘strong’ appeal.

That said, the guidance does mention that sports like horse racing, greyhound racing, darts, snooker, boxing, motorsports and golf are all more “adult-oriented” and unlikely to be of inherent ‘strong’ appeal – so perhaps we might see the ASA take a more lenient view on the inclusion of famous (active and/or retired) professionals from these sports in gambling ads.

Perhaps unsurprisingly, eSports is highlighted as an activity as having particularly ‘strong’ appeal to children on the basis that video games are inherently popular with under-18s, both in terms of the underlying activity of playing video games (on devices like phones and gaming systems) and many individual games that are popular in eSports competitions.

Prove it

The ASA's guidance states that marketers must satisfy themselves to a high degree of confidence that their ad is unlikely to appeal strongly to under-18s before the ad is published.

In the event that it investigates a potential breach of this requirement, the ASA has made clear that it will expect to see a detailed assessment as to why the marketer considered the ad would not appeal strongly to under-18s.

The fact it is difficult or impossible to prove a negative is not going to keep the ASA up at night, but it is likely to keep advertisers awake!

The ASA has provided some more details on areas it considers to be higher risk and less likely to be defensible (and moderate areas of risk which are likely to require robust substantiation and careful consideration to bring down the risk).

Targeting exemption

The ASA's guidance makes clear that the ‘strong’ appeal rules are not applied in media where under-18s can, "for all intents and purposes, be entirely excluded from the audience of an ad". Principally, this will apply in circumstances where the marketer is able to robustly age-verify the potential recipients of the ad as being 18 or older. But advertisers are reminded that the ASA is currently on a mission to ensure age gating and age targeting is done thoroughly, so it is unlikely that reliance on self-disclosed ages will be enough to satisfy the ASA.

Guidance

You can find the ASA and CAP's detailed guidance, here.