UK: Advertising claims – do statements of opinion or objective fact require substantiation? The ASA decides

In an interesting adjudication on the Campaign for Fairer Gambling, the ASA holds that the level of sophistication of the audience at which an ad is aimed, and therefore the effectiveness of a disclaimer used in that ad, has a direct impact on whether a claim is deemed to be an opinion or objective fact requiring substantiation.  Kokyee Ng (DLA Piper, London) comments on the ASA’s decision not to uphold the complaint against Campaign for Fairer Gambling.

The ad

The Campaign for Fairer Gambling (the “Campaign”) published three ads in The House (a political magazine), all of which were identical other than the fact that they were addressed to different recipients including the Prime Minister and Deputy Prime Minister, with the headline:

 ”pull the plug on bookmakers’ addictive roulette machines”.

The ads made various claims about Fixed Odd Betting Terminals (“FOBTs”) and maintained that they were a problem for society.  The disclaimer at the bottom of the ads stated:

“All assertions contained within this article are the opinion of the Fairer Gambling Campaign – a not-for-profit entity funded by Prime Table Games – experts in understanding game content and player behaviour”

(the “Disclaimer”).

The complaint

Philip Davies MP, Chair of the All-Party Parliamentary Group on Betting and Gaming but acting in a personal capacity, challenged whether five of the claims made in the ads were misleading.  The five claims were as follows:

  1. “FOBTS…are the scourge of the high street”;
  2. “FOBTs with their addictive roulette content”;
  3. “FOBTs…have since [2005 gambling act] multiplied to such an extent that they are now dubbed the “crack cocaine of gambling”";
  4. “Now is the time to take a stand on FOBTs and protect the thousands of families who fall foul of the FOBT addiction each year”";
  5. “The reason so many new betting shops are opening on our high streets is to offer more FOBTs on which you can bet up to £100 nearly every 20 seconds.  It is now time to act to prevent exploitation of poorer communities during a time of recession”.

The Campaign’s response and the ASA’s assessment of the claims

In its response, the Campaign emphasized that all of the ads included the Disclaimer and appeared in The House, a political magazine targeted at members of parliament.  Accordingly, The House had a sophisticated readership that would understand that the ad was an opinion piece about FOBTs and would not mislead.  The Campaign further added that it was common for politicians to be lobbied and therefore their ability to discern opinion from fact would be above that of the average person.  The ASA noted that the ad was targeted at MPs who would understand that such pieces were intended to influence their decision on various topics.  The ASA also noted that the ads contained the Disclaimer but that “regardless of the audience or any disclaimer made, if those ads included claims which partially or entirely were presented as objective fact, those claims would need to be supported by objective documentary evidence”.

Claim 1 – “FOBTS…are the scourge of the high street”;

With respect to the first claim, the Campaign provided evidence including social media commentary, various newspaper articles, the Government commissioned Portas Review (see here for The Portas Review) and a TV documentary which discussed the impact of high street gambling on local communities, and expressed concerns over the increase in high street betting shops.  The evidence demonstrated that betting shops had colloquially been referred to as “scourge” by those who were concerned about their proliferation but the ASA noted that the evidence did not specifically demonstrate that the “scourge” reference had been used solely to reference FOBTs.  Nevertheless the ASA held that the claim was not misleading because it would be understood by readers of The House to be the opinion of the Campaign and “not a claim of objective fact which was capable of objective substantiation or a claim that others shared this specific opinion”.

Claim 2 – “FOBTs with their addictive roulette content”

With respect to the second claim, the Campaign said it was “indisputable that FOBTs had roulette content and it should also be indisputable that gambling was addictive”.  The Campaign referred to a 2007 study commissioned by the Department for Culture, Media and Sport, as well as international research that demonstrated that “FOBTs are increasingly associated with reports of problem gambling by players” and that “FOBTs possessed the characteristics of those forms of gambling most associated with gambling problems, namely high event frequency and opportunities for rapid investment”.  The ASA held that the claim was not misleading because readers of The House would “understand the claim to mean that FOBTs contained roulette content and that, as a form of gambling, roulette was known to be addictive”.  The ASA added that, as it was generally accepted that gambling could be addictive, it was reasonable to conclude that roulette, as a type of gambling, had the potential to be addictive.

Claim 3 – “FOBTs…have since [2005 gambling act] multiplied to such an extent that they are now dubbed the “crack cocaine of gambling”"

In response to the third claim, the Campaign relied on evidence that FOBTs had increased considerably since the 2005 Gambling Act and cited a number of sources in support.  The Campaign said the term “the crack cocaine of gambling”  had been coined in a 2003 press article and had been used by trade and the media.  The ASA held that the claim was not misleading.  Whilst the media articles did not use the phrase in connection with the rise in numbers of FOBTs since 2005, the ASA held that readers of The House would understand that increased use of the phrase was likely to be due to an increased awareness of FOBTs which in turn may be connected with the growth of FOBTs in numbers.  The ASA also commented that, as the phrase “crack cocaine of gambling” was presented as a quote, readers of The House would understand the claim to refer to public reference by individuals who were concerned about the rise in FOBTs and shared the same view as the Campaign.

Claim 4 – “Now is the time to take a stand on FOBTs and protect the thousands of families who fall foul of FOBT addiction each year”"

With respect to the fourth claim, the Campaign also cited statistics from the 2010 British Gambling Prevalence Survey (BGPS) which stated that 25% of all industry profits from the machines were contributed by people with gambling problems and there were over 450,000 individuals in the UK who had a gambling problem.  As a result it was fair to say that “thousands of families…fall foul of FOBT addiction each year”.  The ASA, despite noting that the evidence “could not on their own be used to demonstrate the extent to which individuals were addicted to FOBTs”, stated that when considered as a whole, “it was fair to conclude that FOBTs had the potential to result in addictive behaviour…and that the number of those negatively affected by addiction to FOBTs each year was in the thousands”.  Accordingly the claim was not misleading.

Claim 5 – “The reason so many new betting shops are opening on our high streets is to offer more FOBTs on which you can bet up to £100 nearly every 20 seconds.  It is now time to act to prevent exploitation of poorer communities during a time of recession”.

With respect to the final claim, the Campaign again used various studies to show an increase of betting shops and FOBTs in areas of higher unemployment and low income.  The ASA considered the claim would be understood by House readers to refer to the Campaign’s belief that increased betting shops was driven by a desire to increase more FOBTs and that the consequence of this was that some vulnerable consumers would be at risk.  The ASA further commented that these same readers were used to lobbying tactics and would understand the claim to be the opinion of Campaign (which was publicly and openly against FOBTs).  Readers would therefore not expect a claim presented in this way to be supported by objective evidence.

Comment

Having reviewed the ASA’s specific reasons for not upholding the complaint, it seems, (at least to this author), that the ASA has departed from its usual assessment standards by applying a lower test of substantiation in this adjudication.  The ASA’s decisions in relation to claims 2,4 and 5 perhaps best demonstrate this contention.  The evidence presented by the Campaign in response to each of the three specific claims did not on their own substantiate the claim being made (the ASA even acknowledges this with respect to claim number four).  The ASA however was willing to draw conclusions from the overall evidence presented on the basis that The House’s sophisticated readership would be able to discern opinion from fact. 

This seems difficult to reconcile with some of the ASA’s previous adjudications, particularly with respect to the gambling industry and ads relating to free bets.  In such complaints, operators tend to run the argument that the readership or intended audience being regular punters would understand that terms are attached to the bet.  However, this argument tends to fail on grounds that the average member of the public would not understand the standard practices of the industry and as a result, a complaint would be upheld.  The same is also true of airline ads in relation to air fare “sales”.  This adjudication is therefore surprising but perhaps can be distinguished on the basis that the ads relate to offers with specific and not insubstantial conditions aimed at the general public, which would require a more stringent application of the codes for the purposes of consumer protection.

The full decision can be found here.

 

Topics:  Advertising, Advertising Substantiation, Disclaimers, Gambling, Gaming, UK

Published In: Art, Entertainment & Sports Updates, Civil Procedure Updates, Communications & Media Updates, Consumer Protection Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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