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ASA rulings summary, 13 March 2024 - getting 'lit'; a dancing cow for old people; and Beast Mode

This week we discuss what happens when boozy influencers ‘go rogue’ and what makes a dancing cows and celebrities featured in gambling ads appealing to under-18s.

Danielle Walsh gets ‘lit’ - ASA Ruling on Global Brands Ltd

What was complained about? A Tiktok post by Danielle Walsh (an influencer famous for imbibing idiosyncratic drinks in one go) featuring bottles of VK (a particularly garish alcopop) was alleged to have irresponsibly promoted the consumption of alcohol and investigated for not being identifiable as an ad. The video featured Ms Walsh exclaiming “So for pres tonight, let me show you what we’re drinking. We’re going to do four in one, because we’re getting lit tonight.” (‘pres’ being drinks one consumes at home before, or ‘pre’, a night out and ‘lit’ meaning "intoxicated" which has recently also acquired the meanings "exciting" and "excellent" - but the ASA has previously held that in the context of an alcohol ad, its meaning is ‘intoxicated’). She then made four highly alcoholic cocktails and ‘downed’ each drink in succession. 

What was the ruling? Upheld. Unsurprisingly, the ASA felt that the ad was not socially responsible and contained content “that was likely to lead people to adopt styles of drinks that were unwise” (CAP 18.1 and 18.11). The post also did not feature any indication that it was an ad, despite Ms Walsh receiving an incentive from VK (the free VK bottles), and so also breached the code (CAP 2.1, 2.3 and 2.4).

What are the ramifications? An key element of this ruling is the brand's apparent lack of control over Ms Walsh. VK claimed that they had asked her to create “a series of videos which showed the creation of each cocktail, rather than one video in which four cocktails were made and consumed” and had asked for, but not received, approval over the eventual content. Perhaps with an eye on old ASA guidance (where a factor in whether #ad was to be used was the presence of editorial control over a post), it would appear that VK may not have had a clear influencer agreement in place with Ms Walsh. With #ad now being required where free products are received without any other incentive, brands may benefit from clear and concise agreements with the talent they work with to help avoid them ‘going rogue’.

It’s a gambling ad, not a cute cartoon – ASA ruling on Lucky Cow Bingo

What was complained about? A TV ad for Lucky Cow Bingo depicted a cow, on its hind legs dancing against a bright purple background while a voiceover stated, “Someone’s happy. Get that lucky cow feeling with The home of brilliant bingo, super slots and beautiful bonuses like this…Get that lucky cow feeling with up to 500 free spins at” The ad was challenged as being likely to be of strong appeal to under-18s (BCAP 17.4.5). 

What was the ruling? Not upheld. The ASA considered that, while it was apparent that the cow was not a real dancing animal, it was life-like without ‘cartoonish’ features or bright colours. The ad's music, while upbeat, was generic and not linked to or based on songs of appeal to under-18s. The ASA noted that the ad's bright colours and the dancing cow could appeal to under-18s, it was not obviously designed to do so (i.e. did not “resemble a soft toy or a character from children’s stories”).

What are the ramifications? Similar to a previous ruling by the ASA on an ad for ‘The Woodsman Whisky’, ads may be able to feature whimsical or non-lifelike animals and not be deemed to be of strong appeal to under-18s: (i) where the music (even if cheerful) does not have attention-grabbing lyrics nor be based on a song or genre associated with children (e.g. country music in the Woodsman ad); (ii) if the overall tone and aesthetic is predominantly realistic (interestingly this can include realistic looking animals doing unrealistic things - like dancing); (iii) depicts animals in a way that would not be included in a children's book (e.g. with claws and teeth as per the Whisky ruling or in a lifelike fashion as in this ruling); and (iv) avoids ‘cartoon-like’ depictions. Brands should remember that the ASA will consider the overall presentation of an ad, and if there are only a few elements which would appeal to children then an ad is less likely to be upheld as strongly appealing (or likely to appeal) to under-18s.

Which celebrities to avoid using in gambling ads 

What was complained about? A radio ad, for a gambling service featuring retired footballer Adebayo Akinfenwa (aka “The Beast”) was challenged as featuring an individual who was likely to be of strong appeal to those under 18 years of age. 

What was the ruling? Upheld. The ASA considered that, although Mr Akinfenwa’s career as a lower league footballer and resulting lower media profile may place him in the “moderate risk” category, because he had such a large number of social media followers who were under 18 he would be considered “high risk” for use by gambling firms. As such the ASA felt that he was likely to be of strong appeal to under-18s (BCAP 17.4.5). It was relevant to the ASA’s ruling that Mr Akinfenwa “gained a following and a reputation for being an extremely strong football player" (by being the strongest ranked player in the videogame series ‘FIFA’ and adopting the nickname “The Beast” which he used in a clothing range). 

What are the ramifications?  This ruling reflects the ASA’s previous ruling where the use of Anthony Joshua in a gambling ad was seen as being strongly appealing to under-18s. The ASA is likely to decide that an ad for gambling products which contains an endorsement from a celebrity that has a substantial social media following from under-18s if likely to strongly appeal to under-18s. Therefore, careful consideration should be taken in regard to the choice of celebrity used in gambling ads which should include analysis of their social media metrics prior to engaging them for a campaign. BCAP guidance is also relevant - “… a generally high social media following that attracts a significant absolute number of under-18 followers, as determined through quantitative or qualitative analysis, is likely to be considered an indicator of 'strong' appeal” and in this ruling the ASA considered that 157,000 Snapchat followers aged under 18 years (when assessed against the absence of data for the other social media platforms) was “a significant number in absolute terms”.


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