Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Four ads, for The Garage nightclub in Glasgow:
a. An ad for a competition, posted on the advertiser's Facebook page, included an image with text which stated "Like + Share to win a VIP Jägermeister night out!". Text underneath the image stated "**COMPETITION TIME** Like and share to get the following this weekend!! 1 x Bottle of Jägermeister 1 x Booth for 8 1 x Jägermeister goody bag 2 x Jugs of mixer 8 x VIP Wristbands 8 x Cloakroom Tickets 8 x Garage Gold Cards (Free entry for life) ... (remember to make sure your share is public!)". The image showed the competition prizes laid out, including the bottle of Jägermeister.
b. An ad for a competition, posted on the advertiser's Facebook page, included an image of a bottle of vodka and four glasses, with the text "like + share" at the bottom. Underneath, text stated "***COMPETITION TIME*** Like and share this image to win a VIP Booth and a bottle of vodka tonight! ... All those that like this image will be placed on tonights[sic] free guestlist as well!! Tonight we have: ... £1 DRINKS...".
c. An ad, posted on the advertiser's Facebook page for its Tuesday night event, included an image of three young women, who were laughing and sticking their tongues out, wearing T-shirts with the text "#tag" written on them. Text on the image stated "3 days until launch... #tag".
d. An ad for a competition on the advertiser's own website, www.garageglasgow.co.uk, was headed "WIN A TRIP TO NEW YORK WITH SMIRNOFF GOLD!". Further text stated "Smirnoff Gold are giving one of you lucky people the opportunity to go on a trip of a lifetime to the big apple! NEW YORK All you need to do is order a Smirnoff Gold or Applebite Gold from behind the bar! After buying 1, you simply fill out the card that comes with it, and pop it in a box. It's that simple! 1 entry for every drink bought! The draw for the winner will be live on stage Saturday 24th May. Make sure you get down to The Garage that night to get your prize". An image to the right-hand side showed a bottle of vodka. Text stated "COLLECT A GAMECARD WITH EVERY SMIRNOFF GOLD OR APPLEBITE GOLD BOUGHT IN ORDER TO ... WIN A TRIP TO NEW YORK".
The complainant challenged whether:
1. the method of entry for the competitions in ads (a) and (b) resulted in the advertising of alcoholic drinks to those under 18 years of age;
2. the women in the image in ad (c) appeared to be under 25 years of age; and
3. the promotion in ad (d) encouraged excessive drinking.
1. Hold Fast Entertainment t/a The Garage (Hold Fast Entertainment) said the ads were posted on their Facebook page, which meant that they would have appeared in the 'Newsfeed' of anyone who had 'liked' their page. If recipients then 'liked' or 'shared' the ad, it would in turn appear in the Newsfeeds of their friends. They did not have control over who the ad was shared with beyond those people who had liked their page. They said their focus was in marketing their venue to people aged 18 to 25, which was their main customer base.
Hold Fast Entertainment provided statistics from a social media analytical tool which indicated that 3% of the people who had liked their page were under the age of 18. They explained that in addition to their nightclub nights they hosted live music events, which, under the terms of their License, children of 14 and over could attend. For that reason a small number of people under 18 had 'liked' their Facebook page. They also provided statistics which indicated that less than 25% of UK Facebook users were under 18. They considered their advertising was therefore compliant with CAP Code rule 18.15, which stated that no medium should be used to advertise alcoholic drinks if more than 25% of its audience was under 18 years of age.
2. Hold Fast Entertainment said the ad promoted their new club night called #tag and did not feature or mention alcohol. They said the ad included a reference to drink prices at the bottom of the page but no alcoholic drink was mentioned and the prices included non-alcoholic options. They said the image featured their PR staff who were all over 18 years of age.
3. Hold Fast Entertainment provided a copy of a poster which also promoted the event, and highlighted that it had the drinkaware logo on it; they considered the promotion did not therefore encourage excessive consumption of alcohol. They said their staff were trained to monitor customers for excessive drinking and therefore their customers would not be able to abuse the promotion.
CAP Code rule 18.15 18.15 Marketing communications must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age. required that ads "must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age".
The ASA understood that less than 25% of UK Facebook users were registered as under 18 years of age. We also acknowledged that only 3% of those who had 'liked' Hold Fast Entertainment's page were registered as under 18 years of age and therefore that the initial audience of ads (a) and (b) was less than 25% under 18 years of age. However, Hold Fast Entertainment had stipulated that, to enter the competition, entrants must 'like' and 'share' the ads, therefore specifically encouraging the initial recipients of the ads to share them with their Facebook friends. We had not seen evidence that the final audience for the ads (i.e. the initial recipients, the friends with whom they had shared the ads, and any additional Facebook users with whom the ads had been shared) comprised less than 25% of people under 18 years of age.
Notwithstanding that, when posting content on Facebook, advertisers were able to limit the audience to whom that content was exposed, including being able to restrict content so that only users registered as over 18 years of age were able to see it. We understood that such age restrictions applied to the original post as well as re-posts which resulted from 'likes' and 'shares'. However, Hold Fast Entertainment had chosen not to use that method of ensuring that the ads were not seen by any Facebook users under 18 years of age. Because Hold Fast Entertainment had had the ability, through the selection of media and the context in which the ads appeared, to prevent the ads being directed at people under 18 years of age, but had failed to do so, we concluded the ads were in breach of the Code.
On this point, ads (a) and (b) breached CAP Code (Edition 12) rules 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising) and 18.15 18.15 Marketing communications must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age. (Alcohol).
The CAP Code required that ads for alcoholic drinks and ads that featured or referred to alcoholic drinks should not show people who were, or appeared to be, under 25 years of age in a significant role. We acknowledged that the only reference in the ad to drinks, "£1 DRINKS", which appeared below the image, did not explicitly refer to alcohol. However, we understood that that price related to alcoholic drinks and, furthermore, we considered that in the context of an ad for a club night, it was implicit that the drinks to which the ad referred would include alcohol. We considered the women in the image appeared to be under 25 and noted that Hold Fast Entertainment had not provided evidence that they were over 25. We considered that because they were the focus of the image, they played a significant role in the ad. Because the ad referred to alcohol and featured people who appeared to be under 25 years of age playing a significant role, we concluded the ad was in breach of the Code.
On this point, ad (c) breached CAP Code (Edition 12) rule 18.16 18.16 People shown drinking or playing a significant role must neither be nor seem to be under 25. People under 25 may be shown in marketing communications, for example, in the context of family celebrations, but must be obviously not drinking. (Alcohol).
We understood that in order to participate in the competition, entrants must purchase a shot of vodka or a vodka mixer, and complete and submit the "gamecard" which came with the drink. Participants could enter as many times as they wished by purchasing more drinks and submitting more gamecards. We further understood that the winner of the promotion would be chosen through the random selection of a gamecard from all gamecards entered into the competition, and as a result, participants' chances of winning would be increased if they entered more gamecards, which required them to purchase more drinks. We therefore considered the promotion encouraged participants to purchase, and consume, a number of drinks to improve their chances of winning. We concluded the promotion therefore condoned and encouraged excessive consumption of alcohol.
On this point, ad (d) breached CAP Code (Edition 12) rules 18.1 18.1 Marketing communications must be socially responsible and must contain nothing that is likely to lead people to adopt styles of drinking that are unwise. For example, they should not encourage excessive drinking. Care should be taken not to exploit the young, the immature or those who are mentally or socially vulnerable. and 18.10 18.10 Marketing communications that include a promotion must not imply, condone or encourage excessive consumption of alcohol. (Alcohol).
The ads must not appear again in their current form. We told Hold Fast Entertainment to ensure their ads were not directed at people under 18 through the selection of media or the context in which they appeared. We also told them to ensure that their ads which referred to alcohol did not feature people who were, or appeared to be, under 25 years of age playing a significant role and to ensure their promotions did not condone or encourage excessive consumption of alcohol.