Top tips for complying with the ASA’s “strong appeal” test
Expert Insight provided by Gemma Boore, Senior Associate, Harris Hagan
Half a year has passed since the introduction of the “strong appeal” test for gambling advertisements, and it has been a whirlwind of a six months for sport, not least with the FIFA World Cup taking the world by storm between November and December 2022.
For betting operators, the resurgence of live sports presents a rich (and well overdue) opportunity to re-engage with existing and attract new customers. However, operators must be mindful not to fall foul of the new “strong appeal” test, which took effect on 1 October 2022.
In this article, Gemma Boore of Harris Hagan explains the strong appeal test, considers the impact of recent rulings by the Advertising Standards Authority (“ASA”), and shares top tips for those that want to comply with the strong appeal test when advertising sports betting to UK customers. 
The strong appeal test – how does it work?
The CAP Code and the BCAP Code set out the rules relating to advertisements in broadcast and non-broadcast media in the UK.  Since 1 October 2022, Parts 16 and 17 of the CAP and BCAP Code have contained the following requirement:
“Advertisements for gambling must not be likely to be of strong appeal to children or young persons, especially by reflecting or being associated with youth culture.
They must not include a person or character whose example is likely to be followed by those aged under 18 years or who has a strong appeal to those aged under 18. 
Where appropriate steps have been taken to limit the potential for an advertisement to appeal strongly to under-18s, this rule does not prevent the advertising of gambling products associated with activities that are themselves of strong appeal to under-18s (for instance, certain sports or playing video games).”
These ‘strong appeal’ tests effectively prohibit content (including imagery, themes etc.) that strongly appeals to under-18s regardless of how it is viewed by adults (unless it falls within a specific exemption) and extends to the use of celebrities (including footballers) to promote sports betting or convey responsible gambling messaging.  
There is one key exception to the rules: they do not apply in media where under-18s can, for all intents and purposes, be entirely excluded from the audience.  
Recent ASA rulings – what do they tell us?
To date, there have been three ASA rulings regarding the strong appeal tests, each providing helpful context - particularly regarding footballers, who can be low, medium or high-risk depending on the context. 
Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly – of strong appeal
In December 2022, the ASA upheld a complaint for a promoted Tweet featuring Premier League footballers:  Philippe Coutinho, Jesse Lingard and Kalidou Koulibaly.
The advertiser argued that although football and topflight footballers could strongly appeal to under-18s, targeting and age-gating tools had removed under-18s from the advertisement’s audience. This included self-verification by the audience and targeting techniques designed to ensure the advertisement would only reach users aged 25 plus.
The ASA did not accept these arguments and upheld the complaint. In its view, the players used (who were topflight footballers at the time) were likely to strongly appeal to under-18s; and the targeting techniques were not sufficiently robust to exclude under-18s from the audience with the highest level of accuracy.
Peter Crouch and Micah Richards – not of strong appeal
In February 2023, the ASA did not uphold two complaints regarding advertisements featuring retired footballers. The first complaint concerned two TV advertisements featuring Peter Crouch and the second complaint concerned a Tweet featuring Micah Richards.
Both Crouch and Richards retired in 2019 and the ASA maintained that although this meant "not long retired", the teams and games in which the players featured during their later careers meant they were unlikely to still strongly appeal to under-18s. The players were therefore assessed on the basis of their personal profiles: 
(i)             Peter Crouch 
Crouch did not have public accounts on TikTok, Facebook or Twitch when the advertisements were broadcast, and his Instagram account had not been updated since 2014. He did have a public account on Twitter that, when the advertisements were seen, had almost 1.5 million followers but demographic data in late 2022 showed that 0.46% of his followers were aged 13-17 years. Even though Twitter is a media environment where users self-verify, the ASA accepted this as evidence that a very small number of Crouch’s followers on Twitter were aged under 18.
The ASA further noted that the TV programmes in which Crouch appeared (for example, the BT Sport documentary ‘Save Our Beautiful Game’)) and his podcasts targeted adult audiences and were not of strong appeal to children. The exception being ‘The Masked Singer’ in which Crouch appeared as a panellist. The ASA noted this to be a family entertainment programme and of appeal to children. However, Crouch appeared as one of four panellists, the programme was of broad demographic appeal and there was no evidence that his role in the programme led to him being viewed in an aspirational/influential way by under-18s. The ASA concluded that Crouch’s appearance in this programme was unlikely to make him strongly appealing to under-18s. 
(ii)            Micah Richards
Richards did not have active public accounts on YouTube, TikTok or Twitch and audience demographics on Instagram and Twitter showed that: 0.07% of Richards’ Instagram followers were aged 0-16 years and 2.19% were aged 17-19 years; and 0.04% of his Twitter followers were aged 0-16 years and 2.15% were aged 17-19 years. Again, the ASA accepted that this data demonstrated that his social media profile was unlikely to strongly appeal to under-18s.
Additionally, the ASA noted that Richards was a regular and well-known pundit on Match of the Day but BARB data leading up to the advertisement confirmed that a significant number of children had not watched live. Richards also appeared as a pundit on Sky’s live coverage of Premier League matches, which would be of strong appeal to under-18s - but the strong appeal did not extend to the punditry regarding the game. 
Richards had also appeared on a CBBC programme ‘Football Academy’, which was considered likely to be of strong appeal to under-18s but the episode had not aired at the time the advertisement was seen. The ASA noted that if Richards had appeared regularly and prominently on such a programme, he would likely be considered to strongly appeal to under-18s. 
Harris Hagan’s takeaways from the rulings
  1. Do not assume that retired players will automatically fall outside the strong appeal category. Consideration should be taken of the individual’s complete career history - as well as recent appearances on television and other media. The sport that was played is also relevant: football and eSports are highest risk, whereas adult-orientated sports such as golf carry a much lower risk and the use of current or recently retired players in these sports may be acceptable.
  2. Do not automatically exclude football pundits. Even recent appearances as a football pundit covering football matches that are of strong appeal to under-18s, do not automatically mean that the individual will be of strong appeal themselves. Consideration should be taken of their overall appeal to under-18s.
  3. Be careful of using anybody in the advertisement that has an active presence on YouTube, TikTok or Twitch. These platforms are known to appeal to under-18s. Although recent rulings do not expressly state that an active account on these platforms would mean someone has strong appeal, it is notable that neither Crouch nor Richards had a presence on these platforms.
  4. Be cautious of links with children’s or family entertainment programmes, but do not assume this precludes all individuals featuring in them. Although an appearance in a child or family TV show is relevant and should be considered, this will not automatically preclude an individual from appearing in a gambling advertisement provided the advertiser can demonstrate this did not alter the individual’s appeal to under-18s.
  5. Make use of available, verifiable data regarding social media and other followings. Be prepared to defend selections by use of robust data including individual’s social media followings and audience demographics for other media appearances. 
  6. Keep the position under review. Where advertisements appear on multiple occasions and/or an individual is used to represent a brand on an ongoing basis (e.g. as a brand ambassador), evidence that the individual does not strongly appeal to under-18s should be regularly reviewed. An individual that did not appeal strongly to under-18s yesterday may do so today if they have featured in a new child or family TV show, for example. To mitigate this, consider adding restrictive covenants to commercial agreements with brand ambassadors and others used in gambling advertisements, restricting them from participating in other programmes/media that appeals strongly to under-18s before or during the period that an advertisement is broadcast. 
  7. If you are not satisfied that you can demonstrate that the advertisement is unlikely to appeal strongly to under-18s, exclude under-18s from the audience. Reliable age-gating mechanisms should be utilised. These may include validation by payment data and credit checking, but do not extend to self-verification or the use of data inferred by user behaviour.
To view the full article, click hereMore information about the ASA’s strong appeal test and other topical gambling law issues can be found in the Harris Hagan blog.