The Committees of Advertising Practice have today (6 August 2021) published:

• an interim statement on progress (that you can download below) arising from their October 2020 consultation (previously reported by us here) responding to the findings of the GambleAware Final Synthesis Report and
• revised CAP guidance on ‘Gambling Advertising: Responsibility and Problem Gambling’, that will not come into effect until 1 November 2021 (that you can also download below).

A CAP news item on the ASA’s website states as follows:

Proposals for tougher rules on UK gambling ads

Published in October, the consultation included several proposed changes to boost protections in response to findings in the GambleAware research, along with technical updates to support Code users’ understanding of:

• New rules on appeal of content to under-18s – The consultation proposed new rules to restrict the creative content of gambling and lotteries ads to further limit their potential to appeal to under-18s.
• Revisions to the responsibility and problem gambling guidance – The consultation proposed several revisions to the Gambling advertising: responsibility and problem gambling guidance. These seek to reduce the likelihood of gambling and lotteries advertising appealing irresponsibly through their content and general messaging to vulnerable adults, principally adults with problem gambling-related issues.
• Considering the case for new media placement restrictions – The consultation invited comments on CAP and BCAP’s assessment of the GambleAware recommendation for considering new restrictions on the scheduling, placement and targeting of gambling advertisements.
• Technical updates to the Codes – The consultation also included proposed technical changes to the introductory parts of the gambling sections of the UK Advertising Codes to ensure they are up to date with the underlying legal framework and to improve clarity for Code users. These proposals do not entail a change in advertising policy.

Progress update

The consultation yielded a significant number of detailed responses focusing in particular on how a ‘strong’ appeal-based rule to further restrict the appeal of creative content to under-18s would work in practice. Assessment of the consultation feedback is well advanced, and CAP and BCAP commit to announcing the outcome of this part of the consultation in Q4 2021. Because they both concern the protection of under-18s, the outcome of the Committees’ consideration of the case for new media placement restrictions will be published at the same time.

In the interim, CAP and BCAP are keen to implement the finalised outcomes of the parts of the consultation on revisions to the guidance and technical updates to the Code, particularly as the guidance revisions provide increased protections for adult audiences.

Revised responsibility guidance

CAP and BCAP already have extensive guidance that restricts the use of ad content that might give rise to erroneous perceptions of risk and control among the audience. It’s commonly accepted in the evidence that people should avoid making decisions to participate in gambling when their expectations of the risks involved might lead them to make unwise choices. New provisions, drawing on insights from the GambleAware research now restrict ads that:

• present complex bets or other gambling products in a way that emphasises the skill, knowledge or intelligence involved and could therefore lead to erroneous perceptions of risk or control;
• present gambling as a way to be part of a community based on skill; or
• state or imply that offers (such as those involving money back, ‘free’ bets or bonuses, or enhanced odds) are a way to reduce risk.

The revised guidance also includes further provisions and examples that reinforce the need for gambling advertising to avoid encouragements based on creating a sense of impulsiveness and urgency, messages that trivialise decisions to participate in gambling, and marketing approaches that play on people’s financial concerns.

The revised guidance will come into effect in November 2021.

The reference above to ads that “present complex bets or other gambling products in a way that emphasises the skill, knowledge or intelligence involved and could therefore lead to erroneous perceptions of risk or control” or “present gambling as a way to be part of a community based on skill” should be noted in particular by those advertising games (including, for example, poker) that:

• involve both an element of chance and an element of skill, or
• involve an element of chance that can be eliminated by superlative skill, or
• are presented as involving an element of chance,

because they are classified as games of chance that constitute gambling products pursuant to section 6 of the Gambling Act 2005.

Insofar as ads for complex bets are concerned, we have previously reported (in March 2019) on an August 2018 TV advert promoting Sky Bet’s “Request a Bet” service, fronted by the Sky Sports presenter Jeff Stelling, that the ASA initially found “gave customers an unrealistic and exaggerated perception of the level of control they would have over the outcome of a bet and that could lead to irresponsible gambling behaviour”. We subsequently reported (in July 2019) on a fresh ASA ruling that reversed its earlier ruling. We suspect that no such reversal would have occurred if the wording within the revised CAP Guidance (that will come into effect on 1 November 2021) had been in force back in 2018.

Pages 8 – 11 of the interim statement summarise as follows the changes made in relation to each of the three bullet points mentioned above under the heading “Revised responsibility guidance”:

Erroneous perceptions of risk and control

Several amendments to this element of the proposal have been made. They are summarised below, followed by a marked-up version of the relevant guidance text incorporating the final versions of the revisions.

• On the proposals relating to ‘Presenting complex bets in a way that emphasises the skill, knowledge or intelligence involved’, further clarity has been added to explain the term “complex bets”; the term “levels of control” has been revised to improve clarity (see evaluations 2(a)-3.2 to 2(a)-3.5). Furthermore, the scope of the proposal has been extended to apply equally across all gambling products (see evaluation 2(a)-3.6), not just betting products.
• On the proposals relating to ‘Presenting gambling as a way to be part of a community based on skill’, further explanation is included in the evaluation (see evaluation 2(a)-3.7).
• On the proposals relating to ‘Implying that money back offers create security’ the concerns expressed by respondents over the interpretation of “security” has resulted in amendments to improve clarity (see evaluation 2(a)-3.15). Additionally, in light of new evidence submitted by a respondent about the impact of offers more generally, the scope of the provision has been widened (see evaluation 2(b)-2.1).

The revisions to section 4.2 of the guidance are marked up in red (note, the order and structure of existing parts of the guidance section has been amended slightly to facilitate integration of the new provisions):

Marketing communications should avoid approaches that give erroneous perceptions of the level of risk involved or the extent of a gambler’s control over a bet or gambling in general.

The following approaches are likely to encourage gambling behaviour that is socially irresponsible or could lead to financial, social or emotional harm. They and would therefore breach these rules:

• • implying that an activity is without risk;
  • portrayals of risk that are unrepresentative; or
  • placing undue emphasis on the extent of control afforded by a facility like ‘cash-out’;
  • presenting complex bets or other gambling products in a way that emphasises the skill, knowledge or intelligence involved and could therefore lead to erroneous perceptions of risk or control;
  • presenting gambling as a way to be part of a community based on skill; or
  • stating or implying that offers (such as those involving money back, ‘free’ bets or bonuses, or enhanced odds) are a way to reduce risk.

Impulsiveness and urgency

The proposal has been adopted. Further explanatory detail is included in the evaluation (see evaluation 2(a)-3.22).

The revisions to section 4.3 of the guidance are marked up in red:

In order not to encourage gambling behaviour that is irresponsible, marketing communications should not unduly pressure the audience to gamble, especially when gambling opportunities offered are subject to a significant time limitation.

Offers such as live odds or in-play betting – where time limits exist naturally due to the nature of an event – should not be presented in such a way that creates an unjustifiable sense of urgency. The same applies to other very short-term promotions where time limits are set by marketers themselves. In such instances, urgent calls to action (for instance, “Bet now!”), orcreative approaches, such as those that place emphasis on the immediacy of an event or on time running out, and time limited offers emphasising the need to participate before the odds change, are likely to be regarded by the ASA as a breach of these rules because they could pressure consumers into participating when they otherwise would not.

Reminding consumers that other time-limited promotional offers are due to expire is likely to be acceptable

Trivialization

The proposal has been adopted. Further explanatory detail is included in the evaluation. In relating to the use of humour and light-heartedness, see evaluations 2(a)-3.23 to 2(a)-3.27 and, on the depiction of winners, see evaluations 2(a)-3.28 to 2(a)-3.34.

The revisions to section 4.4 of the guidance are marked up in red:

Marketers should take care to avoid approaches that trivialize gambling and avoid the impression that the decision to gamble should be taken lightly. For example, they should:

• • not use humour or light-heartedness specifically to play down the risks of gambling;
  • not encourage repetitive or frequent participation;
  • not encourage people to gamble more than they otherwise would;
  • exercise caution when encouraging people to take advantage of promotions or opening accounts; and 
  • not encourage people to spend more than they can afford; and
  • avoid unrealistic portrayals of winners (for example, characters winning first time or easily).

It is likely to be acceptable for marketers to refer to or demonstrate the ease of use of a service or facility such as an app, but they should be careful not to do so in a way that might be problematic under the points above.

Financial concerns

The proposal has been adopted. However, responding to a submission of evidence relating to issues of financial security and students as a group with specific vulnerabilities, CAP and BCAP have decided to make a further amendment highlighting students as an example of a group that, if obviously depicted in gambling advertising, should be presented carefully (see evaluation 2(b)-2.3).

The revisions to section 6.2 of the guidance are marked up in red:

Marketing communications that unduly play on people’s fears of financial pressures are likely to breach these rules, even where risks have been set out.

Marketing communications should not present gambling as a viable alternative to employment. References to salary or debts in gambling marketing communications are likely to be regarded by the ASA as a breach of these rules. Alongside references to people’s financial or employment circumstances, marketers should exercise heightened caution when obviously depicting groups that are likely to experience financial pressures, for example, students.

Marketing communications that unduly emphasize financial motivations for gambling are likely to be regarded by the ASA as a breach of these rules.

Portrayals of the rewards of gambling should be reasonable and indicative of the rewards that can be obtained through responsible play. Marketers should also exercise caution when depicting winners avoiding the implication that a character has won easily, and approaches that take advantage of people’s hopes of winning or replicating the success depicted. Approaches that focus on gambling as a social activity or entertainment are less likely to breach the Code. 

We invite anyone requiring advice on the above changes to contact us – dc@cliftondavies.com.