This Guidance Note is to help advertisers, agencies, the media, influencers (“parties” to an advertisement) and the community understand what steps should be taken to ensure advertising is clearly identified as such to its audience, as required by the Advertising Standards Code.
NOTE: This Code has been replaced by the new Gambling Advertising Code. The new Code is effective 4 November 2019 for all ads. Read the ASA Codes Committee report on the review of the gambling advertising standards here – Report on the review of the Code for Advertising Gaming and Gambling April 2019. Firms must read the ASA’s updated advice on betting and gaming which may appeal to children and review the guidance published by the ASA in November 2017. Advertising and problem gambling: Gambling. Sections are similar to those in the gambling sections. Although this guidance focuses on gambling advertising, the ASA may draw insights from it to inform its interpretation of those rules where appropriate. The Gambling sections of the CAP and BCAP Codes also ensure the protection of children and young people.
Gambling Industry Code for socially responsible advertising. Good practice guidance. The Gambling Commission is the main regulator of gambling activities in Great Britain, although the Advertising Standards Authority (ASA) regulates advertising activities. The main legislation covering gambling is the Gambling Act 2005 (GA 2005) and the.
Identifying an Advertisement
Advertising Standards Code: Rule 2 (a). Identification – Advertisements must be identified as such.
When determining whether this rule has been complied with, in relation to content being generated regarding certain products, services, or brands, there are two steps to consider:
Is the content being generated in relation to the advertiser’s product or services an “Advertisement”?
If the content is deemed to be an Advertisement, is this being appropriately identified to the relevant audiences?
In many cases it will be obvious to, and well understood by, the audience that they are engaging with an advertisement and in these instances a change to the way the advertisement is currently identifiable to them is not required.
Where it is not obvious or well understood by an audience that content is an advertisement, all parties to the advertisement (e.g. advertiser, agency, media, influencer) are responsible for ensuring the audience is aware they are engaging with an advertisement.
Information or labelling located in FAQs, T&Cs or at the end of a long publication may not be sufficient to comply with Rule 2 (a) of the Advertising Standards Code.
This Guidance Note is applicable to those advertisements where it may not be clear to the audience that they are engaging with an advertisement.
Step 1. Is the content an “Advertisement”?
1.1 ASA Definition of an Advertisement “Advertising and advertisement(s)” are any message, the content of which is controlled directly or indirectly by the advertiser, expressed in any language and communicated in any medium with the intent to influence the choice, opinion or behaviour of those to whom it is addressed.
This broad definition captures a wide range of advertising activity that is controlled by the advertiser. It does not apply to product packaging*, bona fide news, reviews, editorial and broadcast content not controlled by advertisers. *See Code for Advertising and Promotion of Alcohol
When determining whether an advertiser has direct or indirect control over the “bona fide news, reviews, editorial and broadcast content”, a good indicator is whether or not the advertiser has final approval of the relevant copy. An advertiser may have provided information on their product or service, but that may not result in the relevant content not being bona fide news etc, unless that advertiser also had control over the content of the relevant article.
1.2 Payment The ASA’s definition of advertising does not necessarily require financial payment to be made to parties before content they broadcast or publish will be considered an advertisement. Other arrangements, such as the provision of free product to an independent third party in return for published content, may result in that published content being considered an advertisement by the ASA.
1.3 Influencers
In September 2020 the Advertising Standards Authority released the Influencers AdHelp Information ‘making it clear that ads are ads’. This AdHelp Information replaces the original section on Influencers in this Guidance Note.
1.4 Native Advertising Native advertising is material which seeks to provide content generated by brands which does not look out of place in the habitat within which it is being viewed, heard or experienced.
Advertisers should be aware that their efforts to make their advertising more engaging must not camouflage the fact that it is advertising. Content provided by the advertiser must be clearly recognisable to an audience as advertising.
Step 2. If the content is an Advertisement, is it appropriately identified to the relevant audiences?
2.1 Assessing whether or not the advertisement is appropriately identified When determining whether the advertisement is appropriately identified, it will be relevant to consider from the perspective of the audience in the context of the medium used.
If it is clear to that audience that the relevant content is advertiser controlled, then no further disclosures are required.
Advertiser controlled content may be made clear through a number of devices, including from:
The nature of the advertisement content
Where the content is placed
How the audience is directed to the content
The theme, visuals and language used in the messaging
The use of brand names, logos or labels (which may indicate commercial intent)
The audience in the context of the medium used
2.2 Use of Advertisement ‘Identifiers’ There is flexibility when it comes to ensuring advertising content is identified as such. Where an ‘identifier’ is considered necessary, parties may use logos or brand names combined with other visual or audio cues where appropriate, such as background shading, outlines, borders, graphics and video or audio messages depending on the medium.
There are a number of considerations that help determine whether an advertisement is clearly identified to the audience and these may be dependent on the platform used. Where identifiers are used, they should be obvious and able to be easily read, seen or heard. Considerations include;
The position, size and clarity of the identifier
The length of time the identifier is present
The clarity of the identifier is equal on different mediums / devices
The likely interpretation of the identifier by the audience. For example, adults and children will have a different level of understanding and interpretation
When it is not obvious that content is an advertisement such that the audience may need some form of ‘identifier’, the following examples may be appropriate. They include (but are not limited to) use of the following words / labels and the suitability of each one will depend on the platform or medium used; ‘Advertisement’, ‘Advertisement Feature’, ‘Advertorial’, ‘Promotional Feature’, ‘Paid for Ad’, ‘Ad Link’, boxed or highlighted content labelled as advertising or shortened labels such as Ad, Advert or Advertisement (with or without hashtags), an obvious “call to action” such as ‘phone now’ or ‘go to website for more information / to order now’, ‘brought to you by .
Examples
The following examples have been included for illustration purposes only and are provided to assist parties in understanding their obligations to identify advertisements. The examples do not constitute a definitive set of possible scenarios and they have not been tested through the ASA Complaints Board process.
Example 1: A Vlogger has received a skin care product to review. The understanding between advertiser and vlogger is that product content provided by the advertiser is to be included in this review. The Vlogger is free to make other comments as they see fit.
This is likely to be an advertisement as the advertiser has control over the content. It should be clearly identified as such.
Asa Guidance Gambling Advertising Websites
Example 2: A radio broadcaster is provided with an advertiser’s script for a product. It says ‘Product X is a wonderful new way to clean your car. It works by gently removing dirt and shining the car at the same time. Couldn’t be easier. Phone 0800 XYZ now or go to our Facebook page for more information’. The script is written in a way that makes it sound as though the radio broadcaster is spontaneously talking about the product. The radio broadcaster is also encouraged to ‘ad lib’ some of the comments.
This is likely to be an advertisement. The radio broadcaster has included obvious information such as ‘phone now or go to our Facebook page’. This is likely to be sufficient for the audience to know this is an advertisement.
Example 3: A TV home improvements show has a section where the presenter talks about the features and benefits of a building product. The script has been provided by the advertiser and the producer of the show is contractually required to deliver the script. The advertiser has paid for the product to be featured.
This is likely to be an advertisement as the advertiser has control over the content. It should be clearly identified as such.
Example 4: A TV cooking show features a range of ingredients supplied by one advertiser. The advertiser has paid to sponsor and/or have its ingredients be included in the show, but the advertiser does not control the comments about the products. The show presenters use the products and spontaneously make comments about them. The comments may be positive or not.
This is not likely to be an advertisement as there is no control over the messaging of the products.
Example 5: A fashion brand sponsors an event attended by a range of people including journalists. Each journalist is free to write whatever they choose about the event.
Whilst the event was sponsored by the brand, there is no control over the content which may be provided by the journalists. They can write and publish their own independent content. Each journalist’s published content would not likely be considered advertising.
Example 6: A website that advertises holiday destinations publishes a review by a prominent blogger. In exchange for a trip to the holiday destination the blogger was provided with some specific content to include in their review. The advertiser has control over the content of the blogger’s review.
This is likely to be an advertisement and should be clearly identified as such.
Another week, another upheld ASA ruling against a gambling ad.
The ASA hasn't been publishing many rulings of late, but gambling ads make up a significant proportion of those that have been published. A sign that the ASA is not as willing to resolve these informally as it might other types of ads.
Wider context
The wider context is that UK gambling laws are set to be reviewed and tightened, and the gambling industry (and CAP) is determined to get its house in order ahead of that review.
For example, the UK's Betting and Gaming Council (BGC), which represents the regulated betting industry (excluding the National Lottery), had already identified the problem of online gambling ads that might appeal to under 18s or might be seen by under 18s and launched its own crackdown. It published its Sixth Industry Code for Socially Responsible Advertising, which contains stricter rules to rein in ads which could appeal to or could target under 18s. The BGC's new rules came into effect on 1 October 2020.
Last week, on 22 October 2020, CAP started its own consultation, which is likely to result in a tightening of the CAP Code rules around gambling ads in a bid to further prevent them reaching or having appeal to under 18s.
The updates to the CAP Code are not due to be implemented until next 2021. Nevertheless, the CAP Code already prohibits ads from targeting or having particular appeal to 18s. This week's ASA ruling is on that very topic. It involves an ad from August 2020, well before any new rules or guidance from the BGC came into effect.
ASA ruling against Gala Spins
Details
Asa Guidance Gambling Advertising Strategies
A paid-for Facebook post by LC International Ltd t/a Gala Spins, seen on 12 August 2020, included a caption which stated “IT’S A ROLLERCOASTER OF CUTENESS!”. The post included a video which began with a voice-over that stated “What’s your spin?”. The video included text that stated “GALA Spins” and “What’s your spin?” following which the video showed text which stated “Fluffy Favourites” and five toy animals.
Complaint
One person complained that the content of the ad was likely to be of particular appeal to children.
The ASA investigated whether the ad breached the following rules:
16.1Marketing communications for gambling must be socially responsible, with particular regard to the need to protect children, young persons and other vulnerable persons from being harmed or exploited.
Asa Guidance Gambling Advertising Companies
16.3.12Marketing communications must not be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture
Asa Guidance Gambling Advertising Sites
Response
Gala Spins said the ad was posted on their Facebook account which was age-gated to those who were over 18 years old, so that age restriction would prevent those who were underage from viewing and accessing the Gala Spins page.
Gala Spins said they posted the video featuring stuffed animals in error and that it was an out-of-date video. They said that the stuffed toys featured in the eight-second video appeared between seconds four and six; viewers would have had to press play for the video to run. They said the video was part of a multi-channel campaign targeting females in the UK aged between 18 and 65 with an interest in gambling and online gaming.
They provided analytics of the campaign which they said showed that none of those who saw the ad were under 18 years old and all were women.
Asa Guidance Gambling Advertising Agencies
They said the ad had since been taken down on all channels.
Ruling
Upheld: The ASA held that the ad was in breach of both of the above rules
Asa Guidance Gambling Advertising Sites
Gala Spins had taken steps to target the ad only at those between 18 and 65 years of age but that targeting was based on an audience which had self-reported their age, on a platform which under-18s were generally free to use. The steps taken could not ensure that under-18s who falsely reported their age were not exposed to the ad.
Asa Guidance Gambling Advertising Websites
Separately, gambling ads must not appeal more strongly to under-18s than they did to over-18s. The ASA considered that the cartoon-like imagery of five stuffed toy animals was likely to appeal to under-18s. The ASA also considered the game’s name “Fluffy Favourites”, and the ad’s caption “IT’S A ROLLERCOASTER OF CUTENESS!”, were likely to strengthen that appeal. They concluded that those factors combined to give the ad a child-like theme, and that the ad was likely to be of particular appeal to under-18s. The ASA therefore found that the ad was irresponsible and breached the Code.
The ad must not appear again in its current form. We told LC International Ltd t/a Gala Spins to ensure in future that their ads for gambling products did not appeal particularly to under 18s.