The recent ASA adjudication against Brewdog plc BrewDog plc - ASA | CAP brought claims that may be made on alcoholic beverages into the spotlight this week and the ASA has provided additional guidance on hard selzers Hard Seltzers: how to keep your marketing communications as sparkling as your water - ASA | CAP to clarify advertising requirements.
Where drinks have over 1.2% abv there are only 2 claims that may legally be made; these relate to a reduction in the
1. alcohol and/or
2. energy content.
The Brewdog advertising text related to their Hard Seltzer and the text “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY”. … “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press.”
- The ASA challenged whether the claims “only 90 calories per can” and “no carbs or sugar” were nutrition claims that were not permitted for alcoholic drinks.
- Five complainants challenged whether the claims “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY” and “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press” implied that the drink was healthy and were therefore general health claims that were not permitted for alcoholic drinks.
- The ASA also challenged whether the claim “a little bit of alcohol” implied that the drink was low alcohol, which was not a permitted claim for the drink because it had an alcoholic strength by volume (ABV) of 5%.
Brewdog accepted that their claims breached the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code) but stated these were intended to be tongue in cheek. It was agreed they would not be used in future campaigns. However, on the day the ASA ruling was published, Brewdog co-founder, James Watt, republished the ad on social media, (twitter) writing: "The ASA have banned our Instagram advert for saying that we cannot call our seltzer a health drink because we cannot call our seltzer a health drink. Pretty meta. We are also not allowed to tell people it only has 90 calories. Even though it has.”
The ASA have commented they were aware of Mr Watt's comments on social media. Brewdog defies watchdog to reuse banned ad again - BBC News
Legislation and UK Guidance
Only nutrition claims listed in the Annex of Regulation (EC) 1924/2006 on nutrition and health claims on foods (applied by UK Food Information Regulations 2014) are permitted in marketing promoting foods or drinks. From 1 January 2021, only nutrition claims authorised on the Great Britain nutrition and health claims (NHC) register were permitted in marketing communications. A nutrition claim is defined as any claim which stated, suggested or implied that a food (or drink) had particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions.
Specifically, legislation and the Cap Code sets out that beverages containing more than 1,2 % by volume of alcohol shall not bear:
- Health claims;
- Nutrition claims, other than those which refer to a reduction in the alcohol or energy content.
'Reduced energy' - The energy should be at least 30% reduced and the extent of the reduction should be quantified on the label, e.g. 'reduced energy - 30% fewer calories'.
UK guidance states the claim should not include an indication of the characteristic which makes the food reduced in energy as this is likely to constitute a prohibited nutrition claim on alcohol.
The interpretation of claims relating to health are particularly strictly interpreted.
The UK legislation, guidance and CAP Code further require that the only permitted reduced alcohol claims that could be made are “low-alcohol”, “reduced alcohol” with specific criteria attached in order to make these.
A summary of requirements is:
- 'Reduced alcohol' - This claim must not be used in a way which misleadingly implies 'low alcohol'. Best practice would be that the claim is only used where the alcohol has been reduced by at least 30% and the extent of the reduction is quantified on the label.
- 'Low alcohol' or word(s) having similar meaning - not more than 1.2% ABV
- 'Dealcoholised' - not more than 0.5% ABV and having undergone a dealcoholisation process
- 'Alcohol-free' - not more than 0.05% ABV
Nutrition claims on alcohol
The ASA considered the claim “no carbs or sugar” suggested that the product had particular beneficial nutritional properties because it did not contain carbohydrates or sugar. The advert therefore included a nutrition claim that the product did not contain carbohydrates, which, in addition to not being permitted to be made in relation to alcohol, was not permitted to be made in relation to any food or drink product. The nutrition claim ‘sugars-free’ could be made in relation to foods or drinks which met the associated conditions of use for the claim, but it was not a nutrition claim that was permitted to be made in relation to alcohol.
The CAP Code allowed that adverts for alcoholic drinks could give factual information about product contents. It was therefore permissible for advertisers to make factual numerical statements about the calorific content of an alcoholic drink in their advertising, such as “90 calories per can”. However, the ASA considered that by preceding that statement with the word “only”, the ad suggested that the drink had the particular beneficial nutritional property of being low in calories (i.e. energy). The claim “only 90 calories per can” was therefore a nutrition claim equivalent to a ‘low calorie/energy’ nutrition claim. However, it was not permitted to make a ‘low calorie/energy’ nutrition claim in relation to alcohol and it was found the ad breached the Code.
Health claims on alcohol
The CAP Code allowed that adverts for alcoholic drinks could give factual information about product contents, including comparisons, but must not make any health, fitness or weight-control claims. Health claims were defined as those that stated, suggested or implied that a relationship existed between a food or drink or one of its constituents and health. That included references to general benefits of a food or drink for overall good health or health-related well-being.
It was accepted the wording around this i.e. ‘we cannot claim this drink is healthy’ and ‘this is not a health drink’ was presented in a tongue-in-cheek manner. However, the ASA ruled that consumers would understand from the advert that the advertiser was intending to communicate that the product was in fact healthy, but that they were not permitted to inform consumers of that fact. They therefore considered the advert implied that the drink was beneficial to overall good health or health-related well-being and was in breach.
Low or Reduced alcohol claims
The only permitted nutrition claims that could be made in relation to a reduction in alcohol were “low-alcohol”, “reduced alcohol”. The ASA considered that the claim “a little bit of alcohol” was likely to be understood by consumers to mean that the product was low in alcohol. The UK Food Information Regulations (2014) states that the description ‘low alcohol’ (and any other word or description that implied that the drink was low alcohol) should not be applied to any drink of more than 1.2% ABV. As the product contained 5% ABV, it was held this therefore did not meet that definition and breached the Code.
Potential Penalties
The ASA is a non-statutory body so cannot fine or take advertisers to court; however they can refer adverts to Trading Standards as a legal backstop (or Ofcom for broadcast media.) Additionally, any advertisements that break the Code are disqualified from industry awards, denying advertisers and the agencies that created the ads the opportunity to showcase their work.
The majority of sanctions for non-broadcast advertising are co-ordinated through CAP, whose members are trade associations representing advertisers, agencies and media. There are several sanctions, which can be employed in different circumstances:
- Ad Alerts - CAP can issue Ad Alerts to its members, including the media, advising them to withhold services such as access to advertising space.
- Withdrawal of trading privileges - CAP members can revoke, withdraw or temporarily withhold recognition and trading privileges. For example, the Royal Mail can withdraw its bulk mail discount, which can make running direct marketing campaigns prohibitively expensive.
- Pre-vetting - Persistent or serious offenders can be required to have their marketing material vetted before publication. For example, CAP’s poster industry members can invoke mandatory pre-vetting for advertisers who have broken the CAP Code on grounds of taste and decency or social responsibility – the pre-vetting can last for two years.
- Online - In addition to the non-broadcast options listed above, CAP has further sanctions that can be invoked to help ensure marketers’ claims on their own websites, or in other non-paid-for space under their control, follow the Code. They can ask internet search websites to remove a marketer’s paid-for search advertisements when those advertisements link to a page on the marketer’s website that contains material which breaks the rules.
Marketers may face adverse publicity if they cannot or will not amend problem marketing communications on their own websites or in other non-paid-for space online under their control. Their name and details of the problem with their advertising may be featured on a dedicated section of the ASA website, designed to appear in search engine results when a consumer searches for a company’s website. If necessary, the ASA can also place an ASA advertisement appearing in search engine results.
As the legal backstop, Trading Standards will consider referrals to determine if there are breaches of the law. The highest penalty would be Criminal prosecution: following an investigation a case can be taken to either the Crown or Magistrates’ Court with the potential for an unlimited fine or imprisonment for a term not exceeding 2 years or both. Other penalties include warnings, enforcement notices (which if breached carry a criminal penalty). The decision to prosecute or not should be proportionate and in the public interest.
Comment
There is increased demand for healthier options from consumers as well as a burgeoning market for reduced alcohol drinks, therefore this is an area that looks to be under particular scrutiny by the ASA. The regulations and guidance in this area are however strictly applied and currently Brexit has not (so far) caused any changes or deviation from these.
Ordinarily, the adverse publicity garnered by an ASA adjudication against the company is of sufficient deterrent for advertisers, as well as the requirement not to repeat the adverts in their current form with the resulting costs associated with this. It is of particular note that in the current circumstances the adage ‘there is no such thing as bad publicity’ may be coming into play for Brewdog. However, the presence of the legal backstop after it has been admitted the advert breached requirements should give co-founder Mr Watt pause for thought. As the tweet has now been deleted it looks like this has indeed been the case.