By showing the proverbial red card to Ladbrokes, the UK's Advertising Standards Authority has signalled its zero tolerance approach to the application of the new 'strong appeal' test, in force since 1st October this year, when consideration whether gambling ads appeal to the under 18's, .
The new strong appeal test replaces the old 'particular appeal' test, which said that an ad would only be in breach of the CAP or BCAP Code if it had 'particular appeal' to children, i.e. that it appealed more to children than to adults. It follows the lead of the existing 'strong appeal' test that applies to alcohol advertising, but only in relation to broadcast alcohol advertising under the BCAP Code, and not to non-broadcast alcohol advertising governed by the CAP Code. Under the new 'strong appeal' test, an ad will breach the Code if it is of strong appeal to children, regardless of its relative appeal as between adults and children.
When the ASA announced the new test for gambling ads, they published detailed guidance to explain how it would be applied. But there are two problems with the guidance. The first is that it is 36 pages long, which undermines its utility. The second is that ASA appears to be applying the guidance as if it breaching the guidelines automatically means that the Code has been breached. Generally speaking, guidelines should not be binding in themselves. If the ASA simply wants to ban all gambling ads that feature current Premiership football players, unless they are only accessible to users of verified, age-gated media, then that is what the CAP and BCAP Code should say.
In October 2022, just after the new test came into force, Ladbrokes published a promoted tweet with an embedded video that included images of 3 current Premiership footballers: Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly - all set against a background of question marks. The accompanying test asked “Can these big summer signings make the question marks over their performances go away?”
This ruling is another example of an emerging trend, with the ASA launching its own investigation into whether Coutinho, Lingard and Koulibaly were likely to have strong appeal to children. There were no public or competitor complaints, and it is clear the ASA Executive were looking out for an opportunity for the ASA Council to make a ruling on the application of the new test.
Ladbrokes said that they had carefully incorporated CAP’s guidance - all 36 pages of it - and acknowledged that top-flight footballers were considered high risk. Because of that, they had also used all available targeting and age-gating tools to remove children from the audience. Their Twitter feed and tweets were only accessible to people who Twitter had accepted as being over-18. However, Ladbrokes recognised that Twitter relies on self-verification, which may not always be accurate, so they had also targeted the ad on social media to reach only over-25s. Ladbrokes submitted data from Twitter as evidence that the ad had been boosted to only reach users who were aged at least 25 years. According to the ASA's own report, "The data showed a total of 50,666 impressions, and that 0% of their targeted audience was under 20 years old." The ASA does not appear to have disputed the accuracy of this data.
On that basis, you might reasonably expect that the ASA did not uphold their own complaint. If so, you are destined for disappointment. Instead, the ASA fell back on a couple of their own long standing assumptions. First, Premiership footballers will always have 'strong appeal' to the under 18s. Second, self-verification of age by social media users is inherently unreliable, unless it is validated by payment data or credit checking, even when used in conjunction with interest-based behavioural targeting.
These may be reasonable assumptions, but the ASA has effectively turned the the use of current top-flight footballers in gambling ads into a 'strict liability' offence. The ASA investigated without prompting by any consumer complaint, and acted as prosecution, judge and jury. If this is their policy, rather than confronting advertisers with 36 pages of guidance, which is then applied with biblical authority, surely it would be more transparent to simply say "Thou shalt not use current footballers in gambling ads, unless you have verified and validated age data for the relevant media." It is notable that while the ASA has upheld this complaint without adducing any evidence that it had strong appeal to the under 18s, merely relying on their own intuition, Ladbrokes' evidence that none of the viewers of the 50,000 plus impressions of their ad were under 18 has been disregarded, without adequate explanation.
Meanwhile, the strong appeal versus particular appeal is also creating confusion in the alcohol sector, where it only appears in the broadcast BCAP Code, but not in the non-broadcast CAP Code. The Codes are clear that Video-on-Demand (VOD) ads should be governed by the non-broadcast CAP Code, on the entirely logical basis that VOD is not broadcasting. However, Sky and Channel 4 insist that the BCAP Code is applied to VOD ads as well as broadcast TV ads, even when they intended to be used for VOD exclusively. Why?
So we find ourselves in a situation where the ASA is applying the strong appeal test on a strict liability basis for gambling ads in all media, and certain broadcasters are applying the wrong test for alcohol ads on their VOD platforms. So despite the extensive guidance, confusion not only remains, but it reigns.
We considered that it would have been acceptable for the ad to appear in a medium where under-18s, for all intents and purposes, could be entirely excluded from the audience. That would apply in circumstances where those who saw the ad had been robustly age-verified as being 18 or older, such as through marketing lists that had been validated by payment data or credit checking. We did not consider that marketing data inferred from user behaviour met that threshold.