Netherlands issues new guidance on advertising and online gambling – Lexology

The Netherlands Gambling Authority KSA has released new guidance on advertising just before 1 October 2021, the opening of the Dutch licensed online gambling market. Furthermore, a Dutch gambling trade group has drafted an Advertising Code for Online Gambling and a concept of this Code was leaked to the press.

KSA advertising guidance

The KSA guidance concerns advertisements aimed at vulnerable groups, such as minors and young adults, and the use of role models in advertising, such as professional athletes and sports teams.

It is illegal to aim advertisements at vulnerable groups. In assessing whether an advertisement is targeting vulnerable groups, the KSA states that the following should be taken into account:

Content: what design, language, products and people are used in the advertisement, and do these appeal to a vulnerable target group?

Medium: is the advertisement visibly present in or around radio and television programmes or social media channels aimed at or popular among a vulnerable target group?

Location and time: is the advertisement broadcasted in commercial breaks on children's programmes, family programmes, and is the advertisement visible at or around secondary schools and childcare centers?

Target audience: is the audience age and the number of followers of the media or social media channels taken into account?

In addition, it is not permitted to use role models in advertisements under the age of 25 or role models with "substantial reach" among minors or young adults. The KSA has issued a guidance on the terms "substantial reach" and "reach of the role model".

Substantial reach: this term is not specified in law. The KSA assumes that there is no substantial reach if the percentage is between 25% and 30%.

Reach of the role model: license holders are obliged to research the reach of the role model among minors and young adults before collaborating with the role model. In order to establish the reach, all media channels on which the role model is active should be involved, including social media, TV, radio, lectures, interviews in magazines, etc. The results of the research should be an up-to-date and representative reflection of the reach of the role model at the start of the collaboration.

Note that it is not relevant whether an advertisement has substantial reach among young adults or minors when determining whether an advertisement targets a vulnerable group. Content, location and time of the advertisement can mean that an advertisement is aimed at vulnerable groups, even though the substantial reach of the deployed role model remains within the standard of 25% to 30%. In that case, advertising is not allowed.

Advertising Code for Online Gambling

The Netherlands has a self-regulating system regarding advertising, which means that the advertising industry (i.e. advertisers, advertising agencies and the media) in cooperation with the Dutch Consumer Association formulates the rules for advertisements. The Advertising Code Committee (ACC) is the body dealing with this system and the rules on advertising are contained in the Dutch Advertising Code (DAC), which contains a general section and special advertising codes. All advertisements must comply with the rules in the general part of the DAC. The special codes apply to advertising for specific products and services. Anyone who thinks that an advertisement violates the DAC can submit a complaint to the ACC. In case of a DAC violation, the ACC will uphold the complaint and recommend that the advertisers involved discontinue this advertising. The ACC cannot grant damages or impose fines. However, there is a compliance rate of 95% of all ACC recommendations, due to the ACC's policy of "naming and shaming" publishing the names of advertisers unwilling to comply and cooperate on the ACC website.

In early September, a draft version of a special advertising code for online gambling was leaked to the press. A trade group representing the VAN, made up of Dutch land-based gambling companies, prepared this Code, which apparently contains a rule limiting online gambling commercials per TV commercial break to a maximum of three. One online gambling advertisement will be permitted in a three-minute TV commercial block. A maximum of three gambling advertisements will be permitted when there is a three-to-five minute TV commercial block.

NOGA, the Dutch trade group for online gambling companies, reacted with disappointment to the text of the draft Code. According to the NOGA, the rules for online and offline gambling advertisements must be the same since consumers do not distinguish between offline and online gambling advertisements.

NOGA wants operators and groups from across the online and offline sectors to come together and agree on a workable advertising code to avoid saturation advertising and the risk of a total ban.

Conclusion

The opening of the online gambling market in the Netherlands has shaken up the Dutch gambling market with companies fighting for a "piece of the cake". It will be a while before the dust settles and the market calms down.

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Netherlands issues new guidance on advertising and online gambling - Lexology