When the Advertising Standards Agency (ASA) publishes multiple decisions on the same day concerning the same issue, it’s usually a good indication that the issue is high on the ASA’s agenda. See, for example, our recent article on ESG issues in advertising with a focus on “Social”.  

The rules on advertising alcohol couldn’t be clearer that they fall into this “Social” category (“Marketing communications must be socially responsible and must contain nothing that is likely to lead people to adopt styles of drinking that are unwise.” – see rule 18.1 CAP code).

Last week saw the ASA’s focus turn to advertisements for alcoholic beverages. Interestingly, of the two adjudications, the ASA upheld the complaints in one case but not the other. Both cases involved complaints that the ads promoted irresponsible or excessive drinking as well as some interesting points on targeting and labelling.

We set out the key facts and takeaways below, but in short:

• Ad Content - there is no blueprint for advertising alcohol but these cases suggest that certain approaches may be less likely to breach the rules e.g. use of puns where the alternate meaning does not relate to alcohol; ads where alcohol is depicted but not being consumed; and be wary about song lyrics, captions and/or hashtags because making reference to excessive drinking via these means can also be problematic;
• Ad Targeting – it continues to be the case that the same ad can be found to be simultaneously in breach of and compliant with the CAP Code e.g. below, where the same ad on Instagram was fine versus on TikTok where it breached the rules because of the platform mechanics (TikTok’s algorithmically selected “For You” page); and the same ad posted as a paid-for ad versus non paid-for because of the ability to use age restrictions and interest based targeting for paid-for ads (see for example adjudication last year related to advertising of a sports event including reference to HFSS sponsoring brands/products). Brands should beware and tailor guidelines accordingly to ensure the same ad carries across different media consistently and in compliance with the rules e.g. considering the risks relating to TikTok’s algorithmically selected “For You” page and what amends may need to be made; and for paid-for social ads, considering not only the influencer’s following, but also what age-based, interest-based and geography-based factors can be used to appropriately target an ad, including giving an influencer a list of suggested factors to use.
• Ad labelling - beware inadvertent/unofficial influencers such as shareholders; and note that the ASA continues to be reluctant to accept any label other than #ad; hashtags referencing being a boss or owned i.e. owning the company will not be sufficient.

Notonthehighstreet

Gifts retailer Notonthehighstreet was the subject of six complaints in response to a Video on Demand ad and a YouTube ad seen on 15 November 2022. Both ads opened with a scene featuring a man lying on his living room floor doing sit up exercises. A voice-over stated “This is the only six-pack you should be working on, Merry Christmas” and a six-pack of beer cans appeared in the man’s hands.

The complainants argued that the ads were irresponsible and in breach of the CAP Code on the basis that they encouraged excessive drinking and implied that alcohol may take priority over other things in life.

The ASA concluded that viewers would understand the term “six-pack” as referring to the abdominal muscles the man was exercising as well as being a pun or wordplay on the six-pack of beer he is holding in the ad. The ASA stated that in the context of Christmas gift-giving at the time of year when the ad was shown, they considered that ad inferred that the six-pack of beer was to be consumed over the course of the holiday season and not in one sitting. The ASA also considered viewers “would expect Christmas to be a time when people altered their normal routines and might choose to take a temporary break from exercising”. The ASA noted that the ad did not feature the man drinking any of the beer and so did not consider that the statement suggested the man in the ad should swap his exercises for drinking beer. Accordingly, the ASA concluded that the ad did not encourage excessive drinking or imply that alcohol may take priority over other things in life. The ad therefore did not breach the Code and so the complaints were not upheld.

Click here to view the full decision.

The Muff Liquor Company

The Muff Liquor Company received one complaint against two social media posts featuring Laura Whitmore advertising one of the company’s products. Both social media posts (one on Instagram and one on TikTok) were seen on 2 July 2022 and both featured the same content.

The ads consisted of Ms Whitmore drinking four different beverages (peppermint tea, water, beer and “Muff & Tonic”) whilst dancing. With each beverage consumed, Ms Whitmore’s dancing became increasingly energetic. Music in the background featured the lyrics “I’ll be fucked up if you can’t be right here”. Text on screen stated “#MakemineaMuff”. The caption stated: “If drinks were dance moves @muffliquorco #makemineamuff #muffboss #irishowned”.

The complaint identified three issues with the ads:

1. whether they were obviously identifiable as marketing communications;

2. whether the ads were appropriately targeted; and

3. whether the ads encouraged irresponsible drinking.

Call an ad an #ad

The first issue centred on the fact that Laura Whitmore is an investor in The Muff Liquor Company but did not clearly indicate in either ad that they were marketing communications. The Muff Liquor Company contended that Ms Whitmore was not paid for the ads and that the use of the captions “’muffboss” and “#irishowned” made it clear that Ms Whitmore is an investor in the company. The ASA disagreed and upheld this element of the complaint on the grounds that all marketing communications must be obviously identifiable as such. Whilst Ms Whitmore was not contractually required by The Muff Liquor Company to post the ads, the fact that she had a commercial interest in the continued sale of Muff Liquor products by virtue of her being a shareholder in the company meant that the posts (which promoted the sale of Muff Liquor products) did constitute marketing communications and so should have been clearly labelled as such e.g. by including #ad in the post. The ASA concluded that #muffboss would be understood by consumers as more an endorsement rather than a disclosure of commercial interest in the product. They also considered that #irishowned was not sufficiently clear to indicate that the posts were ads. While viewers would know that Ms Whitmore is Irish, so are several other shareholders in The Muff Liquor Company, which manufactures its products in Ireland. Accordingly, consumers would likely understand the hashtag as referring more to the Irish heritage of the products and not necessarily make the connection between the hashtag and Ms Whitmore’s ownership stake in the company. Consequently, the ads were found to be in breach of CAP rules 2.1 and 2.3.

Know your audience

The second issue related to Ms Whitmore’s fanbase consisting of several under 18s and whether the marketing of alcoholic products by Ms Whitmore on her social media was appropriate.

The CAP Code requires that ads for alcoholic beverages should not be directed at people under 18 years of age and that no medium should be used to advertise alcoholic beverages if more than 25% of its audience is under 18 years of age. The Instagram post was deemed not to have been in breach of the Code on the basis that because of the mechanics of Instagram, the ad would have been primarily seen by Ms Whitmore’s followers, only 2.7% of which were under 18 years of age. The ad was, therefore, considered to be appropriately targeted.

As to the TikTok ad, the ASA again considered the mechanics of the platform. As TikTok’s “For You” page is the first page users see, this was understood to be the main way that users engage with TikTok content. The “For You” page” is algorithmically driven, meaning that users see content from accounts that they don’t follow but which the algorithm considers is likely to be of interest to them. With Ms Whitmore being a presenter on Love Island (the fifth most watched programme by those aged 4-15 in Q2 2022 – according to BARB data) the ASA considered a large proportion of those under 18 with TikTok accounts were likely to interact with Love Island content on the platform and would, therefore, likely see content posted by Ms Whitmore on their “For You” page due to her connection with Love Island, regardless of whether or not they followed Ms Whitmore on the platform. Furthermore, the ASA did not consider that Ms Whitmore had “taken all appropriate steps” to restrict under 18’s from seeing the ad. Accordingly, the ASA concluded that the ad was in breach of the Code (rule 18.15).

Drink responsibly 

The third issue concerned whether the ads encouraged irresponsible drinking by implying that alcohol could enhance confidence and mood.

The CAP Code provides that marketing communications must be socially responsible and must not suggest that alcohol can change mood or enhance confidence. The ASA noted that in the ad, Ms Whitmore’s dancing became more animated and energetic when consuming the alcoholic beverages than when consuming the non-alcoholic beverages. In the context of the caption “if drinks were dance moves”, the ASA considered that some viewers would interpret the ad as suggested that alcoholic beverages should be preferred, and that sobriety is boring. The ASA also interpreted the lyrics “I’ll be fucked up if you can’t be right here” as being a reference to excessive drinking. Consequently, the ASA concluded that the ads encouraged irresponsible drinking and were therefore in breach of CAP Code rules 18.1; 18.2 and 18.7.

The ads were subsequently removed, and The Muff Liquor Company and Ms Whitmore were told that they must not appear again in the form complained about.

Click here to view the full decision.

Takeaways 

(1) Alcohol advertising

While these decisions don’t provide us with a blueprint for how ads advertising alcohol should be conducted, they do provide some useful pointers and reminders:

Use of puns or plays on words may assist where it can be argued the message isn’t just about drinking;

Depicting alcohol in the ad as opposed to drinking it may assist,

As you would expect, brands should avoid: actors/ influencers drinking excessively in the ad; claims or suggestions that alcohol can alter one’s mood or enhance one’s confidence; and suggestions that sobriety is boring and that alcohol should be preferred but also perhaps less obviously song lyrics, captions and/or hashtags referring to excessive drinking can also be problematic.

(2) Targeting 

Even if a brand vets an influencer and concludes they are an appropriate match because their following is mainly over 18, the platforms for the campaign should be considered.

As per this decision, the same ad was found to be in breach on one platform (Instagram) whilst being allowed on another (TikTok) because of the mechanics of the platforms. With TikTok’s “For You” page” being algorithmically driven, users see content from accounts they don’t follow but which is likely to be of interest to them.

As such, a brand should consider whether there could be additional factors meaning the influencer is of interest to U18s e.g. here where the influencer was a presenter on Love Island which has a huge following among young people. Also, the ASA noted here that the influencer hadn’t taken “all appropriate steps” to restrict U18’s from seeing the post. Again, given brands will be held jointly liable with an influencer, it is vital they give clear, practical guidance to influencers about how they do this, including targeting and using available platform tools appropriately, and to monitor and request amends to, or take down of, posts that don’t comply.

(3) Inadvertent / unofficial influencers

We work with many brands who take care to put in place clears terms and policies with their influencers. The Muff Liquor Company got into hot water here because of their shareholder acting as an inadvertent influencer.

Brands should ensure that there is no ambiguity and that they set clear policies with their stakeholders, be that shareholders, employees, or agents to reduce the risk of negative adjudications.

This case also demonstrates that the ASA continues to be reluctant to accept nonstandard labels i.e. anything other than #ad. In this case references to “boss” [muffboss] and “owned” [irishowned] were not acceptable. (Some years ago, Claire Sng asked the ASA Chairman about non-standard labels, i.e. whether #gifted was acceptable for influencer content relating to products that had been gifted to them. The answer was no (see reference to this here).

For further guidance on labelling requirements for influencer marketing, view our Influencer Marketing Guide. For advice on any of the issues identified in this article, contact Claire Sng and Elinor Cavil of DLA Piper UK LLP.