ASA RULINGS ON NEW CAP RULES PROVIDE GUIDANCE ON USE OF SPORTS PERSONALITIES IN GAMBLING ADVERTISING

The Advertising Standards Authority ("ASA") has recently released two rulings in which it found that the use of ex-footballers in gambling advertising was not of strong appeal to young people and therefore did not breach the "new tough rules" of the Committee of Advertising ("CAP") Code.  The purpose of the new rules, which came into force on 1 October 2022, are to reduce the risk of gambling advertising-related harm to young people by providing greater restrictions on the content and location of certain gambling marketing.  These rulings mark some of the first decisions where the ASA has interpreted the new rules and are likely to be indicative of the ASA's approach to interpreting and enforcing these new rules going forward.

Relevant CAP Code Rules

The rulings assessed Sky Bet's promoted tweet featuring an image of football pundit and former England and Premier League footballer Micah Richards ("Sky Bet Ad"), and two TV advertisements for Paddy Power's free ‘Bet Builder’ featuring football pundit and former England and Premier League footballer Peter Crouch ("Paddy Power Ads") for compliance with the new rules.  The ASA investigated the Paddy Power Ads under the Broadcast Committee of Advertising ("BCAP") Code rules 17.4 and 17.4.5 and the Sky Bet Ad under the equivalent CAP Code rules, 16.1, 16.3 and 16.3.12.  The wording of the rules is identical, except that the BCAP Code relates specifically to broadcast advertisements, while the CAP Code relates to non-broadcast marketing communications generally.

The relevant rules provide that advertisements for gambling must not be likely to be of "strong appeal" to young persons (this test was changed from "particular appeal" in the 1 October 2022 amendment).   The Codes provide that advertisements must not include a person or character whose example is likely to be followed by those aged under 18 years.  As the Sky Bet Ad and the Paddy Power Ads appeared in a medium where under-18s could not be entirely excluded from the audience (namely TV and twitter), the onus fell on the advertisers to provide evidence that their advertisements were not of strong appeal to under-18s.

The rules explicitly do not restrict the advertising of gambling products associated with activities that are appealing to young people (such as sports events), provided that appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s.   It is worth noting that in a ruling on 21 December 2022, the ASA ruled that the use of all available targeting and age-gating tools by an advertiser to remove under-18s from an advertisement's audience were not adequate to discharge this obligation, where current Premier League footballers were featured prominently in advertising for gambling.

ASA rulings 

In the two rulings, the ASA found on balance that the advertisements were not in breach of the Codes on the basis that the relevant sports personalities, and the content of the advertisements as a whole, were not of strong appeal to under-18s.

1. Whether the sportsperson featured was of strong appeal to under-18s

 In reaching these findings, the ASA expected advertisers to provide evidence that they had identified what persons or characters were generally known for outside the context of an advertisement, and had used appropriate sources of data and information to assess their likely level of appeal to under-18s.

The ASA sighted the joint CAP and BCAP guidance on gambling and lotteries advertising, which states that retired footballers who have moved into punditry have a "moderate risk" of strong appeal to under-18s, and as such they should be assessed on the basis of their social and other media profile.

As such, in determining the appeal of each sportsperson, the ASA assessed the evidence provided by the advertisers relating to their media profile and placed particular importance on the following factors:

• their prominence during their footballing careers (including that both had played in the Premier League);
• the date of their retirement (2019);
• their prominence post-retirement (including that both had moved to punditry);
• the audience demographic of any TV programmes they had featured in; and
• their social media presence, including:
  • whether they had public profiles on platforms that were likely to appeal to young people (TikTok, Instagram, Twitch and Facebook);
  • the actual demographic of their social media followers, including the percentage of followers on their public account that were between the ages of 13-17 years; and
  • the top topics that their followers were interested in (whether adult or otherwise).

After assessing these factors, the ASA did not consider that the overall media profile of either sportsperson demonstrated that they were likely to be of strong appeal to under-18s.   

2. Other factors reviewed in determining whether the advertisement was of strong appeal to under-18s

 The Paddy Power Ads also featured Christmas scenes and related to the FIFA World Cup, which the ASA assessed in its investigations, although it seemed to place much less weight on these factors.  In its finding on whether the Christmas focus of the advertisement made it more likely to appeal strongly to under-18s, the ASA noted that although the advertisements made clear references to Christmas, there was nothing in relation to Christmas that would have been of strong appeal to children, such as depicting Santa Claus.