Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The Gambling Act 2005 came fully into effect on 1 September 2007. Under section 16 of the CAP Code, marketers should neither exploit the young or vulnerable nor imply gambling can solve financial or personal problems or is indispensable, a rite of passage or linked with sexual success. Since 1 September 2007, all gambling ads have needed to comply with the Code and the law. The Gambling Act does not apply outside Great Britain. Specialist legal advice should be sought when considering advertising any gambling products in Northern Ireland or the Channel Islands.
Since that date, the advertising of lotteries (excluding the National Lottery, which has continued to be regulated by the National Lottery Act 1993) has been regulated by the Gambling Act. Unless a lottery is licensed by the Gambling Commission or is a small or private lottery or part of the National Lottery, it is likely to be illegal. Promoters should contact a lawyer for advice under the Gambling Act.
The Gambling Act does not require promoters in Great Britain to offer no-purchase entry routes for instant-win promotions and other promotions involving an allocation of prizes that relies wholly on chance so long as the main entry route does not constitute “payment” as defined by the Act. We understand “payment” would include either a payment to claim a prize or a payment that reflects the opportunity to participate (for example, if the price of a promotional pack was higher than that of non-promotional packs or if participants were required to pay over the “normal rate” to claim their prizes. “Payment” does not include expenses incurred, at the normal rate, by participants making a phone call, sending a letter (by normal first-class or second-class post) or using any other method of communication).
We understand that some personal data has a value and could constitute a “payment”. If so, some promotions might be considered illegal. The Gambling Commission has issued guidance that we believe states that “proportionate requests for data” are unlikely to constitute payment. But the guidance seems to suggest that large quantities of data requested before entry into a draw, or data that seems irrelevant to the promotion or its administration, might be considered differently, especially if that data is sold to third parties. Promoters requesting data might want to check with the Gambling Commission or take legal advice.
Because the Gambling Act does not apply to Northern Ireland, we understand that offering consumers no-purchase entry routes to avoid chance-based promotions being classified as illegal lotteries is likely to remain commonplace there. Promoters in Northern Ireland are probably subject to the Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985 and should seek legal advice before running promotions.
Overseas lotteries may not be advertised in the UK.
See other relevant Betting and Gaming, Sales Promotion and Database Practice entries, Code sections 8 and 17 and the Help Note on Promotions with Prizes.
Last modified : 05 August 2010