April 20, 2017

On 13 April 2017, the Committee of Advertising Practice (“CAP“) published new guidance on non-broadcast ad placement of age-restricted products. The guidance is targeted at marketing communications which are subject to media placement restrictions including gambling advertising, and focusses on the prevention of age-restricted marketing communications from appearing in media (i) for children or children and young people; and (ii) where children and young people make up a significant proportion of the audience.

CAP identifies two methods of non-broadcast ad placement. Namely, targeting:

• on the basis of the audience composition or specific piece of content around which a marketing communication appears (i.e. offline media such as magazines or press, or digital ads on a website); and/or

• through the use of data, when creating the audience for a marketing communication, to include or exclude individuals on the basis of their age or other relevant criteria (i.e. direct mailings, email and SMS text marketing, social media)

The general principles are three-fold:

1. Placement in media obviously directed at the protected age category

“In relation to method (i), age-restricted marketing communications must not be placed in or around media that are obviously directed at the protected age category.”

This is perhaps the least novel of the three requirements. British-licensed gambling operators have long-been aware of the overarching licensing objective in the Gambling Act 2005 to protect minors (and similarly of the mirroring this obligation in advertising regulations laid out in the CAP and BCAP Codes (the “Codes“)); a marketing communication for gambling product(s) placed in or around media that are “obviously directed at the protected age category” would be fairly demonsrable of a breach of the Codes.

2. Placement in media of general appeal

“Also in relation to method (i), age-restricted marketing communications must not be placed in other media whether the protected age category makes up more than 25% of the audience.”

There is no specified type of audience data required, but advertisers must show evidence that under-18s comprise 25% or less of the total audience, or provide data to show that over 75% of the audience is 18 years or over.

The publication of a threshold approach will be welcome news to marketers of gambling advertising, although its application should be exercised with caution: the threshold will only apply where the likely audience of a medium cannot reasonably be determined from a simple assessment. For instance:

• where the medium is of general appeal across all or most age ranges (as with family-oriented content); or
• appeals to young adults but may also be of appeal to young people and/or older children.

The introduction of this principle will no doubt encourage marketers of gambling products to arm themselves with audience data, but such marketers should be mindful that the ASA will still factor in the content (including themes and imagery) of marketing communications, as well ad placement, when assessing whether an advert is considered to be “of particular appeal” to children.

3. Using data to construct a target audience

“In relation to method (ii), markets must how that they have taken reasonable steps to reduce the likelihood of those who are or are likely to be in the protected age category being exposed to age-restricted marketing communications”.

This relates to the use of data on age or other criteria to select recipients of a marketing communication, thereby allowing marketers to exclude the protected age category (under-18s), commonly referred to as “age gating”. The basic principle is that any age data should be used to exclude protected age categories from age-restricted marketing communications and failure to use such data (where it is available for use) will almost always result in a breach of the Codes; however, case precedent suggests that compliance with this principle is not sufficient justification to avoid a breach of the Codes where the ASA consider the content to be “of particular appeal” to children. In the ASA Ruling on Ladbrokes Betting & Gaming Ltd (24 August 2016), the ASA upheld a complaint that an email ad containing a Marvel character was irresponsible because it was “of particular appeal” to children, despite the email only being sent to either registered customers or to consumers they knew to be 18 years of age or over.

Marketers are responsible for compliance with the Codes, and the guidance expressly mirrors the regulatory position that it will not be an acceptable defence to argue that affiliates failed to target or direct a marketing communication appropriately.

The guidance can be found here, and in May 2017, CAP is expected to publish additional, more detailed guidance in for certain types of online media, including the use of targeting on social media platforms.