Last week, the BBC reported that the major gambling operators, acting through their trade association, the Remote Gambling Association (“RGA”), had agreed to limit the amount of gambling advertising on broadcasts of sports events.

It is not clear what prompted the BBC’s story as the RGA had reported at its AGM two weeks earlier that its members were discussing proposals along these lines but that any final agreement would probably be reached as part of the annual review of the Code of Socially Responsible Advertising put together by the Industry Group for Responsible Gambling (“IGRG”) which represents all of the different parts of the gambling industry. Despite the BBC’s report, no final agreement appears yet to have been reached.

Nevertheless, it has been clear for some time that the industry needed to do something about the amount of gambling advertising – particularly where it can be viewed by children – as there is a general consensus that the relaxation of the restrictions on gambling advertising put in place by the Gambling Act 2005 has led to a surfeit of advertising and the “normalisation” of gambling which, in turn, may have contributed to problem gambling.

Prior to the 2005 Act, only bingo and lotteries could advertise on TV but in the 2001 report of the Gambling Review Body led by Sir Alan Budd, his committee said the following:

“We share the ASA’s view that if the underlying activity is properly regulated, there should be no objection in principle to the product being advertised. There are particular considerations which should apply to gambling. Some of these are touched on by the various codes that currently control advertising, such as not directly advertising at children, restrictions on the times adverts are broadcast and not encouraging excessive gambling. We believe that the Gambling Commission will have a role to play in bringing these issues together in an advertising code of practice for the gambling industry.”

The Review Body’s recommendation to relax gambling advertising was accepted by the Government in its 2002 White Paper which paved the way for the 2005 Act.

It is perhaps also worth recalling that in that White Paper, the Government said:

“In the Government’s view the law should no longer incorporate or reflect any assumption that gambling is an activity which is objectionable and in which people should have no encouragement to pursue. It is an important industry in its own right, meeting the legitimate desires of many millions of people and providing many thousands of jobs.

In retrospect, the White Paper probably represents the high watermark of the libertarian approach to gambling and the moral and regulatory pendulum has certainly swung back towards intervention and paternalism over the last few years.

Until relatively recently, concerns about the harm that gambling can cause have primarily focused on FOBTs but now that that issue has finally been resolved, the spotlight has turned to advertising.

In fact, gambling advertising has been an increasing concern over the past few years and was also addressed by the Government as part of its review of gaming machines. Its consultation cited an Ofcom study which showed that gambling advertising TV impacts had grown from 5.8 billion to 30.9 billion between 2005 and 2012 and that, over that same period, the number of gambling adverts viewed by children had more than tripled. Somewhat surprisingly, the Government did not, however, conclude that any greater restrictions should be imposed on gambling advertising but instead that the gambling industry should fund a major responsible gambling advertising campaign to be aired primarily on TV.

However, whilst the level of problem gambling has remained broadly unchanged and there is little evidence to establish a direct link between gambling advertising and problem gambling, the prevailing view – particularly influenced by the amount of gambling advertising around football – has become that there is just too much of it. Indeed, a number of the larger operators themselves have said this and stated their willingness to agree to curbs but said that the best way of achieving this would be for the Government to impose restrictions.

The first action, however, was taken by broadcaster Sky TV which announced last month that, from August 2019 (the beginning of the next Premier League season), it would limit the number of gambling advertisements to one per commercial break.

Despite the operators having called for the Government to take action, as gambling advertising increasingly threatens to replace FOBTs as the stick with which to beat the industry, the operators have clearly decided to take action themselves and, according to the RGA at its AGM, is considering restricting the amount of advertising before the 9.00 pm watershed during live sports programmes. The proposal is that no betting advertisements or sponsorship can be shown from five minutes before the event begins until five minutes after it finishes. (The only sport that this will not apply to is horse racing).

If and when these proposals are implemented as part of the IGRG Code they will apply to all Gambling Commission licensees as Ordinary Code 5.1.8 of the LCCP expects operators to comply with the IGRG Code.

Whilst these changes to the Code will undoubtedly take some of the heat out of this issue, broadcast advertising of gambling is not the only concern of the politicians and campaigners. They are worried more generally about the relationship between advertising and gambling and their attention has already turned to gambling advertising within the stadium, gambling sponsorship of football clubs and other sports teams and bodies and, in particular, to digital marketing. Indeed, the broadcasters have also seized on the last of these issues (as part of their campaign against technology companies such as Facebook) to point out that a lot of the broadcaster advertising spend will now migrate to digital marketing which, unlike traditional media, is not regulated by Ofcom.