New CAP rules to protect under 18s from gambling and lottery advertisements

EU – Gaming, Gambling and Esports

The "tough new rules" put forward by the Committee for Advertising Practices ("CAP") to reduce the appeal of gambling and lottery advertisements to under 18s came into force on 1 October 2022. The rules change the test applied in determining whether an advertisement appeals to under 18s, with the purpose of prohibiting popular elements of youth culture being used in gambling advertisements.

Key date(s)

• 22 October 2020 – 22 January 2021 – An open consultation took place to gather views as to whether changes to the rules and guidance on gambling and lotteries advertising required updating.
• 5 April 2022 – The CAP announced the introduction of new rules to safeguard under 18s from exposure to gambling and lotteries advertising.
• 1 October 2022 – The new rules came into effect.

Status

• Following CAP's announcement of tough new rules on gambling advertisements for under 18s in April 2022, such rules came into force on 1 October 2022. The new rules provide that gambling and lottery advertisements must not "be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture". This upgrades the current threshold applied to advertisements from not being of "particular appeal" to "strong appeal", bringing content that has a strong level of appeal to under 18s regardless of how it is viewed by adults into scope. Alongside this, CAP released a publication titled "Gambling and lotteries guidance – protecting under-18s", to assist marketers in complying with the new rules.

 What it hopes to achieve 

• The new rules aim to reduce the risk of gambling advertising related harm to children and young people by restricting the content and location of certain gambling marketing. The guidance also confirms that this will affect digital marketing, as the new rules apply to gambling advertising and marketing which is freely accessible to children. In practice, this means content which is available to an audience which does not effectively exclude under 18s. Paid-for ads on online platforms, direct marketing (e.g., emails) and content on a gambling companies' own websites fall within the scope of the rules if there are no age verification measures in place to restrict the access of under 18s.
• Most notably, the new rules upgrade the threshold applied to gambling advertisements from stating that they must not have a "particular appeal" to under 18s to stating that they must not have a "strong appeal" to under 18s. Guidance on this new wording elaborates that the new test for appeal includes consideration of how under 18s perceive imagery, themes and characters in marketing, regardless of how adults may interpret them, and prohibits the use of particular content which reflects or is associated with youth culture. Fairy-tale associated characters and names, exaggerated cartoon-style graphics and cartoon animals are all listed under this definition.
• The guidance further specifies that gambling adverts which use top football-players, sportspeople well-known to under 18s, video game content popular among young people and stars from reality TV shows are not permitted.

Who does it impact? 

• Marketing agencies and gambling companies will be affected by these changes, but it is unclear as of yet whether online platforms, such as Facebook and Twitter, will be responsible for paid-for ads which appear on their sites.CAP advises removing content which falls under the scope of the rules or implementing age verification measures where this is not possible. This could include requiring login procedures or the entry of credit card details, but CAP warns that a simple box-ticking exercise to confirm age will be insufficient. Gambling advertising content which appears in gambling games and apps is excluded from the scope of the new rules under the assumption that such content could only be accessed by users who have verified they are aged 18 or above.

Key points 

1. From "particular appeal" to "strong appeal"

• • The new rules have different wording which prohibit gambling advertising content which is freely accessible to under 18s if it has "strong appeal" to under 18s, whereas previously the rules targeted gambling advertising content of "particular appeal". The new rules and accompanying guidance define "strong appeal" as content which has colours, music, characters and videogame references which could have obvious appeal to children and young people. Importantly, the "strong appeal" test does not rely on a comparison of the likely appeal of the content to adults.

2. Determining strong appeal

• • he CAP guidance indicates that determining whether a marketing communication would have strong appeal to under 18s is not always straightforward. CAP provide a number of examples which would constitute content with strong appeal to under 18s including: popular personalities likely to influence under 18s; content linked to activities popular with young people; and characters which under 18s are likely to have an affinity to, such as cartoon characters.

3. "Freely Accessible" to under 18s

• • Gambling advertising and marketing which strongly appeals to under 18s is only prohibited if it is "freely accessible" to children and young people. That includes advertising which is displayed on websites with no age verification measures, such as a login process or the requirement to enter credit details. Gambling companies' own websites fall under this scope.

4. Celebrities and Sportspeople
   • Celebrities, such as reality TV stars, well-known football players and other sportspeople who are popular among under 18s are prohibited from featuring in gambling advertising content which is freely accessible to children and young people.
5. Acting with a "high degree of confidence"
   • The CAP guidance provides that marketers must be able to satisfy themselves with a high degree of confidence that their advertisement will not appeal to under 18s before it can be published. In the event that the ASA investigates a potential breach of the rules, it will expect to see a detailed assessment explaining why the marketer considered that the advertisement would not appeal to under 18s.

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