By Hilary Souter, Chief Executive, Advertising Standards Authority (ASA)
In April 2019, the ASA released a new Gambling Advertising Code, following a review by its Codes Committee. The ASA is a self-regulatory organisation and sets standards for responsible advertising in New Zealand. It has six Codes of Practice including the Advertising Standards Code which applies to all ads in all media.
There are also separate codes for advertising gambling, alcohol, therapeutic and health products and services, financial, and advertising to children and young people, which all require a high standard of social responsibility.
Details about gambling in New Zealand and the code review process are set out below.
Gambling in New Zealand is regulated by the Gambling Act 2003.
The purpose of the Gambling Act 2003 is to:
The Act stipulates that gambling in New Zealand is prohibited unless it is:
Bookmaking and the advertising of overseas gambling in New Zealand are not authorised under the Act, meaning they are prohibited and illegal.
Remote interactive gambling (which includes gambling conducted on the Internet or by phone/text messaging) is prohibited except in strictly defined circumstances. The two government-authorised gambling providers, the New Zealand Lotteries Commission and the New Zealand Racing Board, are authorised to conduct approved forms of remote interactive gambling.
The Advertising Standards Authority sets the standards for responsible advertising in New Zealand. The ASA also runs a complaints process to support code compliance.
The ASA has 14 member organisations representing advertisers, agencies and the media. Funding is via advertiser levies and member fees.
Anyone can complain about any advertisement in any media. In 2018, the ASA processed 820 complaints about 425 advertisements. If the Chair of the Complaints Board rules there is a case to answer, as a matter of natural justice, the advertiser, the advertising agency and the media organisation (where relevant) are given seven days to respond to a complaint. If the complaint is upheld by the Complaints Board, the ASA requests that the advertisement be removed/changed and there is a high level of compliance with these requests. In addition, all decisions are released to the media.
There are two ASA Codes applicable to gambling advertisements. The Advertising Standards Code (ASC) applies to all advertisements in all media, including gambling advertisements. This Code was released in 2018 and replaces six codes including the Code of Ethics, Code for Comparative Advertising and Code for People in Advertising.
There are additional rules for gambling advertising in the Gambling Advertising Code.
The Advertising Standards Authority (ASA) Codes Committee is responsible for reviewing and updating the Codes which set the standards for responsible advertising in New Zealand. The committee has advertiser, agency, media and public representatives.
The Code for Advertising Gaming and Gambling was reviewed during 2018 and a new Gambling Advertising Code developed with principles, rules and guidelines. In addition, legislative changes had been made since the Code for Advertising Gaming and Gambling was last reviewed so this also needed updating.
The ASA consulted with a range of organisations and agencies on the draft Code. Issues raised included the need to better protect children and young people from gambling harm and the definition of a gambling advertisement.
3.1 Protecting Children and Young People from Gambling Harm
This was a significant issue raised during the consultation process.
Some submitters consider children and young people should be free from gambling advertisements.
Consistent with the ASA Children and Young People’s Advertising Code rules on advertising occasional food and beverages, the new Gambling Advertising Code has a rule that states “Gambling advertisements must not target children or young people”.
Children are defined as those people who are below the age of 14 years and young people are defined as those people who are at least 14 but under 18 years of age.
The Gambling Advertising Code definition of ‘Targeting’ is determined by the context of the advertisement and three criteria; the appeal of the activity, product or outlet; the appeal of the advertisement content and; the expected average audience at the time or place the advertisement appears.
Children and Young People may appear in gambling advertisements targeting adults but only in situations where they would be ‘naturally found’ e.g. a family meal. There must be no direct or implied suggestion they will participate in the gambling that is being advertised.
3.2 Protecting other vulnerable audiences
A number of guidelines are intended to protect vulnerable audiences from gambling advertisements that could cause harm. These include a guideline which states that advertisements must not play on fear or through inappropriate use of cultural symbols or references.
3.3 Definition of a Gambling Advertisement
Advertisements for gambling activities, products or outlets that are ‘free to gamble’ were not previously explicitly captured in the Code for Advertising Gaming and Gambling.
These advertisements are now included in the Gambling Advertising Code definition of a ‘Gambling Advertisement’. These advertisements will be subject to the high standard of social responsibility expected for gambling advertising.
Advertisements whose purpose is to solely and clearly educate people about problem gambling are not included in the definition because they are not for a gambling activity, product or outlet. These advertisements are subject to the Advertising Standards Code which includes rules for social responsibility and truthful presentation.
Advertisements for the community good that may result from the profits of gambling are recognised as gambling advertisements. These advertisements have been previously considered under the current Code for Advertising Gaming and Gambling. The brands advertising the community good from the profits of gambling are synonymous with gambling activities, products or outlets and therefore fit the definition of gambling advertisements in the new Code.
Advertisements from outlets for “pay to gamble” or “free to gamble” activities or products are gambling advertisements for the purposes of the new Code. When the outlet is advertising other offers, such as entertainment, and no gambling activity or product is advertised, it is unlikely these advertisements will be gambling advertisements but will be considered on a case by case basis. The Complaints Board will refer to context, medium and audience if a complaint is made about a brand-only advertisement under this Code to determine if it met the definition of a gambling advertisement.
Advertisements for games that include in-game micro-transactions (such as purchasing a lootbox, the contents of which are based on chance) are not considered gambling advertisements for the purposes of the Code. Some submitters were concerned these transactions may be a form of underage gambling. These transactions are not currently considered gambling under New Zealand legislation. The ASA has referred this matter to the Department of Internal Affairs.
Advertisements for a sponsorship arrangement between gambling activities, products or outlets and individuals, teams, places or organisations are considered gambling advertisements for the purposes of this Code.
3.4 ‘Free to Gamble’ activities, products or outlets
Concerns were raised about advertisements for overseas ‘free to gamble’ websites that lead consumers to gamble on overseas ‘pay to gamble’ websites.
Advertising overseas ‘pay to gamble’ websites in New Zealand is illegal under the Gambling Act 2003 and are therefore outside the ASA’s jurisdiction.
However, to help address the concerns in the context of advertising self-regulation, the new Gambling Advertising Code includes ‘free to gamble’ activities, products and outlets in the definition of a gambling advertisement. Guidelines highlight the importance of providing clear information to consumers about where the ‘free to gamble’ activity can be accessed.
The Committee noted that the issue for most submitters is the activity (advertising a free-to-gamble site that results in users finding and gambling on an overseas pay to gamble site) rather than the content of the advertisements. Regulatory change is required to address this. The ASA has referred this matter to the Department of Internal Affairs.
The new Gambling Advertising Code was released on Thursday, 4 April 2019. It will be effective for new gambling advertisements on Monday, 5 August 2019 and for all gambling advertisements on Monday, 4 November 2019.