When ThePool.com announced a new campaign promoting its pool betting service to 16 and 17 year olds and featuring sex and nudity it must have expected controversy, but a pre-investigation cross media ban and a direct Ministerial attack, all for advertising a perfectly legal service?
Minister and ASA in enforcement double act
Who: The Pool.com, The Advertising Standards Authority and Culture Secretary, Tessa Jowell
When: March/April 2006
In a unique development, HM Government and the Advertising Standards Authority joined forces to spike a press campaign by football pool betting site The Pool.com.
The campaign encouraged 16 and 17 year olds to take part in pool betting on the advertiser's site. It took the form of a leaflet handed to commuters at a London train station and insertions in Metro and Zoo, featuring topless females with "BANNED" signs slapped over their tops. The idea was apparently to highlight the fact that contrary to popular opinion, pool betting was just as legal for 16 and 17 year-olds as having sex. Headlines included "Why wait til 18? Bet at 16" and "There's nothing like your first bet."
Legal or illegal, the government's Culture Secretary, Tessa Jowell, was having none of it. She contacted the Advertising Standards Authority in short order after seeing announcements of the impending campaign. Shortly afterwards, ASA Chairman, Lord Borrie, took the unusual step of ordering the withdrawal of the campaign pending completion of the ASA's investigation, before ThePool.com had any opportunity to put its case for the defence.
The Pool.com agreed to cease further distribution of the leaflet and the Metro and Zoo's publishers agreed not to carry the ads again and to only accept future insertions from ThePool.com which had prior approval from the CAP Copy Advice team.
Extraordinary Ministerial Statement
The Pool.com agreed to consult with the CAP Copy Advice team on future advertising, whilst Tessa Jowell released an extraordinary statement welcoming the action of the ASA and denouncing The Pool.com's campaign as "utterly reprehensible". She also expressed concern that the type of gambling the campaign was offering might be illegal for under 18s and said she had asked the Metropolitan Police Service to investigate.
Under current UK law and under the up and coming Gambling Act 2005, due in force late 2007, participation by 16 and 17 year-olds in football pool betting is perfectly legal. In this context "pool" means in essence that the winnings come out of the aggregated stakes of all those participating.
This means that provided The Pool.com football pools service qualifies as "football pool betting," and apart from Tessa Jowell, nobody has so far suggested it does not, the service being advertised is quite legal for 16 and 17 year olds to use.
That is not the end of the story, however, because the CAP Code of Advertising, Sales Promotion and Direct Marketing ("Code") takes a much stricter line when it comes to any advertising communication that could be regarded as encouraging those under 18 to participate in any kind of betting and gaming, pool or otherwise.
Paragraph 54.4 of the Code states that "marketing communications should not be directed at people under 18 through the selection of media, style of presentation, content or context in which they appear."
In its findings at the end of the investigation and hearing ThePool.com's arguments in defence, the ASA found the campaign breached not only para 54.4 of the Code but also para 54.2 ("marketing communications should be socially responsible and should not encourage excessive gambling"), para 54.3 ("Care should be taken not to exploit the young, the immature or those who are mentally or socially vulnerable.") and para 2.2 ("All marketing communications should be prepared with a sense of responsibility to consumers and to society.")
Why this matters:
Perhaps surprisingly there was no further allegation that by its use of nudity and references to sexual activity the campaign breached the Decency provisions of the Code, but given the pretty clear breaches of four other Code provisions, perhaps it was felt unnecessary to add this to the advertisers' woes.
A separate aspect is that given the swift reaction from state and regulator, it is surprising that the new gambling legislation coming on stream in 2007 leaves unchanged the relaxation of the rule against under 18 betting for 16 and 17 year olds and football pools. It seems odd that the Code makes it virtually impossible to promote a service to a community that can make use of it without illegality. Perhaps the new gambling advertising code to be devised under the Gambling Act 2005 by the CAP under the watchful eye of the Gambling Commission will address this anomaly.