Abstract of glass building

Carlsberg in the clear on the inappropriate targeting of under-18s

22 July 2019. Published by Oliver Bray, Partner and Alyson Lloyd, Senior Associate

What steps do you need to take to ensure that age restricted products do not target the wrong audience?

The twist

This ASA decision on a Carlsberg ad is a useful recap of the hurdles that brands need to jump through from a technological perspective to remain in the clear on the advertising of age-restricted goods and services. Essentially, retailers and brands need to be able to show that they have taken a number of satisfactory measures to make sure their ads are targeted at the right audience (eg 18+ for alcohol, 16+ for HFSS etc.).

Why is this important for retailers?

This decision shows that as long as retailers proactively limit, through technological means, the risk of age restricted ads being seen by children then the risk of the ASA deeming that the ad has been inappropriately targeted at children will be low.

The issue

An ad for Carlsberg was seen on 17 May 2018 within the PC game Microsoft Solitaire.  The complainant challenged the appropriateness of the ad’s targeting since it was seen while playing a game that could be used by children. The ASA looked at whether the ad breached CAP Code Rule 18.15, which requires that marketing communications are not directed at under-18s through the selection of media or the context in which they appear.  It also requires that if any medium has an audience of over 25% of under-18s it cannot be used to advertise alcoholic drinks.

The response

Carlsberg explained that its agencies had placed the ad programmatically with software which uses data to advise on decisions on which ad space to buy.  Carlsberg and its agencies had not had any direct contact with Microsoft regarding the placement of the ad.  The software compares the online behaviour of the user against that of the selected audience for the ad in deciding its correct placement.  Carlsberg was satisfied that the agencies had ensured that the ad was suitably targeted and was not in any way focused on under-18s through the selection of media or its context.

Carlsberg also said that 98.3% of the visitors to the Microsoft website that hosted the games including Solitaire, Sudoku and Mah-jong, were aged over 18 in accordance with the rule that no more than 25% of its audience is under 18.  Furthermore, the ad was targeted at users aged between 25 and 34 years of age which gave a seven year buffer over the age restriction.  There was nothing in the ad of any specific interest to children.

In order to further limit the risk of under-18s seeing the ad, Carlsberg used behavioural targeting.  They used multiple third-party data firms who collected data on age, gender, income and use of other websites, apps and content areas viewed and clicked.  Online behavioural data, declared and inferred, was obtained from a variety of sources such as surveys, content downloads, logins, loyalty cards as well as characteristics surmised from a user’s online activity.

The decision

The ASA explained that, since the ad was targeted to a specific set of users on the Microsoft website, the only relevant test was whether it had been targeted at under-18s.  The ASA pointed to the results from the third-party data analysis which showed that 98.3% of visitors to the website were aged over 18 and further that Carlsberg had built in a seven year buffer to safeguard the fact that users were aged over 25.  Since Carlsberg had used behavioural data including online usage and interest-based targeting, and had also established an age buffer, the ASA believed that these methods adequately reduced the possibility of under 18 year olds seeing the ad. It was therefore decided that the ad had not been directed at under-18s and was not in breach of CAP Code rule 18.15.

Want more like this? This blog was adapted for retail from our snapshot series, bringing you a regular roundup of key legal developments for the modern commercial lawyer.