Advertising Standards Authority
2 Torrington Place London
WOI E 7HW Telephone 020 7580 5555 Fax 020 7631 3051
Internet http:llwww.asaorg~Uk
Joint Response of the Advertising Standards
Authority
and Committee of Advertising Practice
Introduction
The Advertising Standards Authority
(ASA) and Committee of Advertising Practice (CAP) are responsible
for maintaining the highest standards in non-broadcast advertising
in accordance with the British Code of Advertising, Sales Promotion
and Direct Marketing. The CAP Code (the Code) applies to all non-broadcast
marketing communications in the UK, covering such media as print,
posters, sales promotions, direct mail, SMS and internet advertising.
The Code, adjudicated on by the ASA,
requires all marketing communications to be 'legal, decent, honest
and truthful'. They should be prepared with a sense of responsibility
to consumers and to society, and should respect the principles
of fair competition generally accepted in business. The Code,
and the ASA's interpretation of it,
is the standard to which all
organisations involved in non-broadcast advertising in the UK
defer. Although the system is non-statutory, participation in
it is mandatory by virtue of the agreement of advertisers, agencies
and media to maintain common standards.
More information about the ASA and CAP
are available on their respective websites www.asa.orp.uk
and www.cap.orcvuk.
We welcome the opportunity to make a
submission to the Joint Committee following its call for evidence
on the draft Gambling Bill. This response is submitted on behalf
of both the ASA and CAP and confines itself solely to those parts
of the proposed legislation that deal with the future regulation
of betting and gaming advertising. As the specific draft clauses
on gambling advertising have yet to appear, the remarks that follow
are based on the policy instructions as published on 9 April 2003.
Specific Remarks
The ASA and CAP whole-heartedly accept
the need for adequate and appropriate controls to exist with regard
to the administration and licensing of gambling. We are, however,
unpersuaded of the need for the Gambling Commission to create
a separate advertising code and establish a parallel complaints
investigation system
under the Commission, as appears the
intention at present. Indeed, the development of sector-by-sector
advertising regimes would be contrary to the interests both of
consumers and fair competition, and inimical to the effective
maintenance of consistent standards.
The construction of a parallel code
and adjudicatory process as proposed in the policy instructions
is likely to raise issues of double jeopardy, and create significant
uncertainty for consumer and business alike as to the division
of responsibility across regulators. Further, this duplication
of structures and purposes seems very much contrary to the intent
of government as expressed by the Better Regulation Task Force
and its principles of best practice regulation.
The CAP Code contains a section dealing
specifically with betting and gaming —reflecting
current legislation about the advertising of gambling —
and we have consequently developed
a significant expertise handling complaints on this issue (summarised
in Appendix 1). The CAP Code also covers a range of issues not
specific to gambling —
taste and decency, for example
— but
which may apply to betting and gaming advertisements, and will
not be dealt with in the proposed Gambling Commission Code.
Despite the advertising remit of the
Gambling Commission being partial, any competence in this area
would nonetheless require it to spend considerable sums on establishing
an internal unit to investigate and adjudicate on advertisements.
We understand that it
is proposed to model this on
that of the Financial Services Authority, a body that is criticised
by consumers and advertisers alike as slow, burdensome and lacking
in transparency and user-friendliness.
In its more than forty years of operation,
the ASA-CAP system has built a reputation as a leading example
of effective industry self-regulation. It is responsive (in 2002,
complaints were resolved in an average of 27 days), adaptable
to emerging technologies, accessible and cost-effective. Confidence
in the system is such that Ofcom has recently proposed this as
the model to be used for the future co-regulation of broadcast
advertising. In this connection, you will note that the trend
is towards the convergence of advertising regulation rather than
its further fragmentation.
The ASks ability to deliver these benefits
and protections to the consumer is greatly assisted by the existence
of a power of referral to the OFT under the Control of Misleading
Advertisements Regulations (CMARS). Thus while the ASA is recognised
as the primary ~established means' in its implementation —
dealing with more than 99% of
complaints about misleading advertising in the non-broadcast sector
as a result — the
legal backstop of the OFT under CMARS provides the strong legislative
underpinning that ensures the maintenance of the self-regulatory
system.
It is the adoption of a similar backstop
model that we commend to the Committee in its consideration of
the draft Gambling Bill. Such a model would retain last-resort
sanctions — such
as the withdrawal of licences —
for the Gambling Commission whilst
ensuring that complaints about the advertising of gambling are
dealt with in a timely and proportionate manner by the established
and universally recognised regulator of advertising in the UK,
the Advertising Standards Authority. Should minor Code
3
changes be required to reflect the new
gambling legislation, these would be considered by the Committee
of Advertising Practice.
We have met with the DCMS on two occasions
since the publication of the policy instructions to discuss this
solution. Although these meetings have proved both positive and
constructive, we consider it useful to bring these suggestions
to the attention of the Joint Committee.
Dr David Webster
Head of Policy
9 December 2003
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Appendix 1: Consideration of Betting
and Gaming Issues under the CAP Code
In 2002, the ASA received 13,959 complaints
about 10,213 separate advertisements. There were 103 complaints
(0.7% of the total) about advertisements for gambling and betting
services, relating to 88 separate advertisements (0.9% of the
total. Of these.
- 17
complaints were outside the ASA's remit (generally relating to
claims on a company's own website or in a betting shop),
- 30
were based on a misunderstanding and it was clear that the advertiser
had no case to answer (generally when a complainant has overlooked
explanatory information in the advertisement),
- 15
complaints related to matters of taste and decency (generally
relating to the depiction of women)
- 14
were withdrawn (generally when a complainant chooses not to continue
with their challenge),
- 8
were requests for removal from mailing lists and were passed to
the Mailing Preference Service,
- 3
related to a mailing about which the Authority had already upheld
complaints; these were passed to the CAP Compliance team who received
an assurance that the advertiser would seek advice from the CAP
Copy Advice team on future mailings.
- and
3 were passed on to the relevant European Advertising Standards
Alliance member (on the accepted principle that advertisements
are considered under the advertising regulations of the country
of origin).
The remaining 13 complaints (concerning
12 separate advertisements) concerned issues of misleading advertising.
2 of these represented clear breaches of the Code and were closed
informally once an assurance had been received from the advertiser
to avoid such claims in future.
The other 11 were formally investigated,
at which advertisers are required to submit substantiation for
consideration by an Investigations Executive. Of these, 8 complaints
were upheld, 2 were not upheld and one is still under investigation.
Of the 4,371 written requests for advice
received by the CAP Copy Advice team in 2002, 65 related to advertisements
for betting and gambling services.
Betting
Early in 2002, the ASA upheld a complaint
against the claim 'triple your chances of success' for an NRT
product. Although this was not an investigation into gambling
products or services, it does demonstrate that the ASA is in a
position to consider technical definitions of such terms to reach
adjudications that serve to protect the consumer.1 This
can further be shown in an ongoing case in which the ASA is assessing
a 'better odds' claim.
1 In
short, odds are the ratio of
an event
occurring to
its non-occurance. If the advertiser's
claim a success rate of 23.6% compared to a placebo success rate
of 10.2% then the odds of success are 0.236/0.764 =
0.31, the odds of placebo
success are 0.102/0.898 =
0.11, meaning that the odds
are
0.31/0.11 =
2.82. The increased chance
of success is 0.236/0.102 =
2.31. The former rounds up
to three, the latter to two —
hence the upheld adjudication.
NB: that in a racing context the chance' are in fact known as
the 'odds'.
5
The ASA will also analyse the profit
claims made by betting tipsters, which are often dependent on
volumes of technical information. Advertisements for tipsters
with profit claims are now required (following a case involving
Brimardon Systems) to include information including the recommended
stake to help consumers understand the nature of the claims the
advertisers are making.
The ASA has also assessed the clarity
and fairness of comparative claims and investigated complaints
about the language used by advertisers (eg. 'start winning the
same day') considering whether or not the language is likely to
mislead consumers. This builds on the ASA's great experience across
a number of sectors in considering the impression given by advertising
copy. The Copy Advice given generally required advertisers to
tone down claims, taking into account the fact that readers familiar
with the principles of gambling are unlikely to read claims by
bookmakers such as 'making the FA Cup a winning event' literally.
The most common complaints are from
former customers who consider that a service has not lived up
to their expectations. Advertisers are required to "proof'
their tips, by lodging them with an independent and respected
third party before the sporting event takes place.
In addition, following consultation
with relevant stakeholders, CAP has published a Help Note on Advertisements
for Betting Tipster Services to explain to the industry the kind
of advertising that will be acceptable. This Help Note is attached.
Casino
Most complaints relate to betting shops
rather than casinos, given the current limitations in advertising.
However, the ASA has considered several about online casinos.
In 2002 we upheld a complaint against 888.com. This complaint
involved a pop up advertisement which suggested a download was
underway. When the user tried to 'cancel' this download, they
were taken to the 888.com website. The ASA ruled this advertisement
a breach of the Code.
A second case centred on the likelihood
of the bright colours in an advertisement appealing to children.
This complaint was not upheld, but is an example of an advertisement
which falls outside the traditional issues relating to gambling
about which the ASA has will consider complaints.
Following a recent compliance survey,
online gambling advertising was identified as an area of possible
concern, in particular where these advertisements appear of sites
visited by minors. The ASA has adopted the established rule for
other media that gambling can only be advertised on sites where
75% of its visitors are over 18.
Lottery
The last category of complaints relates
to lotteries. These complaints rarely relate to the National Lottery
(the licensee of which has to abide by the Lottery Commission's
own code which requires compliance with the CAP Code), but more
regularly are mailings which offer the opportunity to enter foreign
lotteries. Again, the ASA is likely to have more experience dealing
with such mailings than any other body and it
would be difficult to draw a
line separating those mailings that come under a GC Code and the
CAP Code.
6
HELP NOTE ON
MARKETING FOR BETTING TIPSTER
SERVICES
1. Background
These guidelines, drawn up by the CAP
Executive, are intended to help marketers and agencies interpret
the rules in the British Code of Advertising, Sales Promotion
and Direct Marketing. The "Key points" are intended
to guide media ad departments. The Help Note is based on past
ASA rulings. It neither constitutes new rules nor binds the ASA
Council in the event of a complaint about a marketing communication
that follows it.
2. Key points for media ad departments
- Publishers are advised to require
all betting tipster marketers to disclose to them their real name,
trading name (if different) and permanent address
- Publishers should check that marketers
have "proofed" forecasts with an independent third party
before marketing that they have tipped particular winners or achieved
a certain level of profit (see 5.1)
- Publishers who "proof' their
marketers' forecasts for them should be able to provide documentary
evidence that the forecasts were lodged with them in advance and
that their systems for recording such forecasts have been approved
and regularly monitored by an independent third party (see 5.2)
- Publishers should check that marketers
have not claimed that their forecasts are very likely or certain
to win or their service is very likely or certain to turn a profit
(see 6.1)
- Publishers should check that marketers
who make claims about their track record have not exaggerated
their success, have stated clearly both the relevant period of
forecasting and the "bank" and have either based their
forecasts on starting prices or have stated the basis for any
earlier prices (see 7)
- Publishers should check that opinions/testimonials
are not presented as statements of fact, are genuine and are used
with permission (see 8).
3. The law and the Code
3.1 Marketers should seek legal
advice or contact their home authority to ensure that their claims
are legal. Individual circumstances will determine whether or
not any marketing communication breaches the law;
3.2 Marketers offering services
via a premium rate telephone line must conform to the latest edition
of the ICSTIS Code of Practice and are urged to consult the ICSTIS
Guideline on Betting Tipster Services (Guideline No. 15);
3.3 The British Code of Advertising,
Sales Promotion and Direct Marketing (the CAP Code) states:
"Before distributing or submitting
a marketing communication for publication, marketers must hold
documentary evidence to prove all claims, whether direct or implied,
that are capable of objective substantiation" (clause
3.1); and
"No marketing communication should
mislead, or be likely to mislead, by inaccuracy, ambiguity, exaggeration,
omission or otherwise" (clause 7.1).
4. Scope
4.1 This guidance applies not only
to horse racing betting tipster advertisements in non-broadcast
media but also to those marketing tipster services for other events
(e.g. football matches); and
4.2 This guidance applies to those
marketing betting systems as well as those marketing specific
forecasts on events.
5. "Proofing" forecasts
5.1 Marketers must be able to substantiate
claims that they have tipped particular winners or achieved a
certain level of profit. To do this, they should "proof'
forecasts, i.e. lodge all forecasts with an independent third
party before the events to which they refer take place;
5.2 Ideally, marketers should "proof
forecasts with an independent third party such as a well known
and reputable firm of accountants or solicitors. If marketers
"proof' forecasts with the publishers of their advertisements,
the publishers should be able to provide documentary evidence
that the forecasts were lodged with them before the relevant events
took place and that their "proofing" systems for recording
such forecasts have been approved and regularly monitored by a
well known and reputable firm of accountants or solicitors; and
5.3 Marketers who claim to have
forecast a successful combination (e.g. a double or a treble)
must be able to substantiate that the forecast was "proofed"
specifically as a combination and not just as several individual
bets.
8
6. Exaggerated success claims
6.1 Marketers should not claim that
their forecasts are very likely or certain to win or that their
service is very likely or certain to turn a profit.
7. Track record claims
7.1 Marketers who make claims about
their track record (e.g. by quoting aggregate profit figures)
must state clearly the relevant period of forecasting and the
total amount of money (the "bank") needed to place stakes
on the forecasts;
7.2 Marketers should not refer to
successful periods in a way that wrongly implies they are successful
in other periods, or are generally successful;
7.3 Marketers who make claims about
their track record are urged to base their claims on starting
prices (NB. the ICSTIS Code of Practice that applies to marketers
using premium rate services states that "aggregate profit
figures may only be calculated using starting prices and the total
stake on which the profit is based must be stated"); and
7.4 Marketers who make claims about
their track record based on prices other than starting prices
should be able to substantiate that those prices were available
with a reputable bookmaker and should state the basis of those
prices. Marketers basing their forecasts on ante-post prices should
not ignore from their calculations those stakes lost because horses
did not run.
8. Opinions/testimonials
8.1 Opinions should not be presented
as statements of fact. The use of quotation marks alone may not
be sufficient to make clear that an opinion is not a statement
of fact;
8.2 Opinions on particular forecasts
or on the success of particular services should be genuine and
should be used only with the written permission of those giving
them; and
8.2 Opinions alone do not constitute
substantiation and should be supported, if
necessary, with independent evidence
of their accuracy.
Advice on specific marketing communications,
or on issues that are not covered in this Help Note, is available
from the Copy Advice team by telephone on 020 7580 4100, by fax
on 020 7580 4072 or by e-mail on copvadvice~caP.OrQ.uk.
April 2002
Revised: March 2003
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