I am not sure whether or not the data supports it, but to me it feels rare that in the ASA’s Wednesday rulings round-up there are any complaints in respect of gambling advertising that are not upheld. Yesterday, there were two!

Background 

2022 saw a change in the rules that prohibited gambling advertising being of ‘particular’ appeal to children and young persons. The change to a prohibition on gambling advertising being of strong appeal is one that has long applied to alcohol advertising on television, but there have been a number of questions raised in its application to gambling adverts – even despite CAP’s detailed guidance on “Gambling and lotteries advertising: protecting under-18s” (Guidance).

For many sports betting operators who have always promoted their products using footballing images, through player endorsements or other association with the game, the effect of the Guidance is huge. Football, together with things like e-Sports, has been deemed of inherent strong appeal to children and young persons. The Guidance goes on to explain that appropriate steps must be taken to limit the use of content which has strong appeal, by making references to football more generic and carefully considering the use of any persons or characters within gambling ads. Anyone featured must be ‘unlikely’ to have strong appeal to the under-18s by assessing the:

• roles or activities they are associated with;
• social media profile and following of the person; and
• the audiences for the role or activities that person is known for.

No Premier League players even if no promotion

We saw from the Ladbrokes Twitter decision in December that: (a) the ASA is holding firm on the use of Premier League footballers, even where there is no call to action, promotional offers or link back to the operator’s site; and (b) unless advertisers can show that the ads featuring content of ‘strong’ appeal to children are seen by a robustly age-verified audience, they cannot benefit from the narrow targeting exemption. Neither of these findings confirm much more than is already set out in the Guidance, although it probably helps legal and compliance teams justify their review of paid-for ‘branded content’ in the same way as a promotional offer – these are all marketing communications under the CAP Code.

Pundits can be OK if the data is supportive of unlikely appeal

In the decisions not upheld against Paddy Power or SkyBet, we are further informed as to how operators and then the ASA approach the assessment of persons or characters and whether they are of ‘strong’ appeal. In particular, these rulings shine a light on those personalities linked to football but who are not current football players. Clearly Flutter had implemented good procedures around the assessment of the personalities they have decided to continue using – there was a lot of demographic data supplied around Peter Crouch and Micah Richards’ social and other media profiles which appeared to contribute greatly to the assessment of their appeal to the under-18s.

Do these rulings change things for operators? Other than to clarify that a link to football is not enough to make the person automatically of ‘strong’ appeal, I don’t think they do. But it is pleasing to see operators responding with the level of data the ASA expects to make its assessment and that the ASA is showing that it is thoroughly reviewing it.