The gambling sector has been coming under mounting pressure in the UK.

There have been select committee reports and government statements about gambling, including, reform of the Gambling Act 2005 and a call for evidence on the status of loot boxes

When it comes to gambling advertising, the Advertising Standards Authority (ASA) and Committee of Advertising Practice (CAP) have been active this year in taking gambling operators to task. They have also been scrutinising the ways in which children consume media and advertising, including age-restricted ads in general and gambling-related ads in particular. 

CAP and BCAP (the broadcast equivalent to CAP) are now consulting on proposals to introduce stricter rules and guidance with the aim of better protecting the under 18s and vulnerable people from potential gambling-advertising related harms. 

There are already significant restrictions in the UK advertising codes on gambling and lotteries ads, which are designed to limit their appeal to children and children’s exposure to them.

However, following research by GambleAware, CAP proposes to further tighten the rules and guidance around advertisements for gambling brands, platforms and services. 

The research suggests that the creative content of gambling and lotteries advertising that complies with the CAP Code has more potential than previously understood to adversely affect under-18s and vulnerable adults. As a result of the research findings, CAP is consulting on proposals to strengthen the rules to prohibit creative content of gambling and lotteries ads from appealing ‘strongly’ to under-18s. 

Currently gambling ads are prohibited from appealing particularly to under-18s; in other words, they are banned from appealing more to under-18s than to adults. ‘A ‘strong’ appeal test identifies content (imagery, themes and characters) that has a strong level of appeal to under-18s regardless of how it is viewed by adults. Adopting the ‘strong’ appeal test would decrease the potential for gambling ads to attract the attention of under-18s in an audience. 

Of course, child-oriented content (like animated characters and superheroes) are already banned, but the new rules would extend to cover characters’ behaviour, language, fashion/appearance etc, which are likely to appeal strongly to under 18s. In particular, ads would be prohibited from including a person or character who is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18.

The new restriction would have significant implications for gambling advertisers looking to promote their brands using prominent sports people and celebrities, and also individuals like social media influencers.

CAP also proposes updating existing guidance to prohibit:

  • presenting complex bets in a way that emphasises the skill or intelligence involved to suggest, inappropriately, a level of control over the bet that is unlikely to apply in practice;
  • presenting gambling as a way to be part of a community based on skill;
  • implying that money back offers create security (for example, because they give gamblers the chance to play again if they fail or that a bet is ‘risk free’ or low risk);
  • humour or light-heartedness being used specifically to play down the risks of gambling; and
  • unrealistic portrayals of winners (for example, winning first time or easily).

CAP says that these proposals seek to strike a proportionate and effective balance between allowing gambling operators freedom to advertise to a legitimate adult audience with the need to protect under-18s and vulnerable adults from the potential harms that can arise from gambling advertising that is irresponsible.

The consultation ends on 22 January 2021.

Are these changes needed, and will they be effective?

In setting the advertising rules, CAP and BCAP work under the framework of the Gambling Act 2005. When it came into force in 2007, the legislation removed advertising prohibitions in place for many gambling products and, for the first time, allowed those products to be advertised on TV. Therefore CAP cannot ban gambling advertising outright and in any case it considers that restrictions must be proportionate and it does not consider that the available evidence justifies more far-reaching advertising restrictions than are proposed in its consultation.

It is notable that even though gambling marketing spend online has increased exponentially and the range of connected devices has revolutionised ease of access to gambling, the overall trend in underage participation in any gambling activity has declined significantly since 2011 and adult problem gambling rates have remained stable.  

This alone appears to undermine the loud calls for reform of the advertising rules. However, perhaps it's better understood as a political issue. The political currents in the UK appear to be running strongly in the direction of tighter regulation of gambling. By bringing in reforms even before gambling laws are reviewed and reformed in Great Britain and Northern Ireland, CAP, BCAP and the ASA will get ahead of the imminent political storm. The risk is that, by pre-empting these changes to the law, the CAP AND BCAP Code might have to be changed again before the end of 2021.

Reflective mood

Perhaps it's because of the current 'challenging times' we are living through, but I am in a reflective mood. 

As I write this closing section, I'm staring out of my window at the darkness and rain, and the provocative libertarian in me is wondering whether all the UK regulators and politicians might consider taking a bit of a break from introducing new rules. Just for a bit. Perhaps we could see how various sectors of the British economy, such as gambling, food, alcohol and the automotive sectors, might get on by only having to deal with all the pre-existing rules and regulations. Wouldn't that be a thing! Perhaps this might give them an opportunity to recover from the challenges posed by the pandemic, Brexit and so on...

The advertising lawyer in me wishes the libertarian would toe the line, of course, but secretly thinks that tightening rules on advertising in various sectors doesn't really solve anything. It simply makes politicians and others feel better about being seen to be doing something, without ever getting to the root of a problem. It turns the advertising industry into the proverbial straw man, at a time when that industry too needs support. 

Blaming advertising, and coming up with tighter rules for advertising without changing the industry, is a little bit like changing the wallpaper on a damp wall... 

Of course, every part of me absolutely agrees that children vulnerable consumers have to be protected, now more than ever. Of course, I do. I'm not a monster. 

Nevertheless, I will let the realist in me have the last word. It is far more likely that yet another sector will soon become the object of politicians' and regulators' attention and selfless desire to keep churning out more and more rules, just as soon as the gambling sector has been put through the ringer.  And round and round it goes.

With many thanks to Helen Hart for her assistance with the factual elements of this article. I take full responsibility for the gloomy reflections at the end of it!