Who: The Advertising Standards Authority (“ASA“); Ladbrokes Betting & Gaming Limited (“Ladbrokes“)
When: 17 May 2017
Law stated as at: 27 June 2017
Ladbrokes successfully overturned the ASA’s initial ruling which found that Ladbrokes had irresponsibly promoted an Iron Man themed slot game.
Ladbrokes circulated gambling advertisement emails featuring an image of Iron Man with the text “IRON MAN 3…Enjoy this exclusive Ladbrokes welcome offer with Iron Man 3“.
In August 2016, as marketinglaw reported, the ASA ruled that the Ladbrokes’ ad was in breach of the CAP Code because it was likely to appeal to children. Regulation 16.3.12 of the Code states that “marketing communications must not be likely to be of particular appeal to children or young persons, especially by reflecting or being associated with youth culture”. ‘Children‘ are those aged 15 years or under and ‘young persons’ are people aged 16 or 17.
In May this year, Ladbrokes appealed the decision on the basis that the email was only being circulated to:
- registered customers; and
- consumers validated as being 18 or over.
As the ad wasn’t sent out to children or young persons, Ladbrokes held that the ad couldn’t appeal to those under 18.
Ladbrokes also provided Facebook demographics for the Marvel brand fan page as evidence that under 18s constituted just 6.39% of the fan base, with the majority of fans falling within the 18 to 37 year old bracket. Evidence also included the fact that Iron Man was “adult themed” and reflective of popular culture, particularly as Iron Man features at Comic Con events, targeted at adults.
The ASA’s assessment of the appeal
Whilst the ASA noted that Comic Con, which features Iron Man and other comic books generally, was aimed at adults, it maintained that Iron Man could appeal to children, due to its comic book nature and the fact Iron Man themed toys and other related merchandise were targeted and sold to children. Further it rebutted the Facebook data provided by Ladbrokes on the basis that all Facebook users must declare themselves to be at least 13 years old and therefore younger children wouldn’t have been included in the data set.
That said, the tipping point in favour of Ladbrokes’ appeal was that the ad was only circulated in emails to a restricted age group, as set out above. The requirement that ads and other marketing communications should only be placed where there is a reasonable expectation that viewers are over 18 was stressed in the ASA’s guidance released earlier this year – ‘Media placement restrictions: protecting children and young people’ – intended to support advertisers in demonstrating that they have complied with the Code by appropriately limiting exposure of any gambling advertisement to those under 18.
Whilst superhero images have been prevalent in online gambling for many years now, notably in 2013, the ASA banned an 888.com ad which used Spiderman to advertise an online casino game. Indeed, in the ASA’s guidance on the rules for gambling advertisements there are specific restrictions on using licenced characters and cartoons. However, the key difference between the 888.com case and the Ladbrokes’ Iron Man case is that in the former the ad was widely available on a website, whereas Ladbrokes restricted the circulation of its Iron Man ad by specifically targeting those 18 or over by email.
Why this matters:
The fact that the ASA has reversed its 2016 decision will come as a relief to gambling advertisers, as the initial decision implied that the ASA’s interpretation of the Code in relation to the protection of children was so strict that “likely to be of particular appeal” would mean that any ad using anything that attracted even just a small percentage of under 18s would be prohibited; even where reasonable steps had been taken by the advertiser to protect under 18s.
However, gambling advertisers should still tread with caution, as the ASA is increasingly likely to require gambling advertisers to demonstrate that they have taken all reasonable steps to ensure their ads are only viewed by those 18 or over. Unless exposure of such ads to under 18s is appropriately restricted, the fact that merchandise aimed at children exists for any character used in the ad could be enough evidence to persuade the ASA to ban the ad.