Background
Ad (a) appeared in December 2020, and we therefore assessed it under the Code rules that applied at that time.
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Two posts appearing on DRTY DRINKS’s Instagram account, for a hard seltzer alcoholic drink:
a. The first, posted on 6 December 2020, included a close-up image of someone’s hands as they played on a fruit machine. In their left hand they held a can of the drink. Text next to the image stated “‘4 cans of DRTY and a scotch egg please’”. Below that text included “#spikedseltzer […] #nosugardiet #keto #ketodiet #carbfree […] #zerosugar #nocarbs #lowcalorie”.
b. The second, posted on 14 January 2021, included an image of several cans of the drink in a cooler, with someone reaching to take one, alongside the text “Everyone: There’s a pandemic happening and it’s baltic [sic] outside, should probably stay in. Me: Solo DRTY’s in the garden? Don’t mind if I do.” Below that further text included “#spikedseltzer”.
Issue
The ASA challenged whether the claims:
1. “4 cans of DRTY and a scotch egg please” in ad (a) and the image in ad (b) alongside the text “Everyone: There’s a pandemic happening and it’s baltic [sic] outside, should probably stay in. Me: Solo DRTY’s in the garden?” encouraged excessive drinking and were therefore irresponsible; and
2. “#lowcalorie”, “#nosugardiet”, “#zerosugar”, “#keto”, “#ketodiet”, “#carbfree, and “#nocarbs” in ad (a) were nutrition or health claims that were not permitted for alcoholic drinks.
Response
DRTY Drinks Ltd responded that they would remove the posts and agreed not to use the claims again.Assessment
1. Upheld
The CAP Code required that marketing communications for alcoholic drinks must be socially responsible and not contain anything that was likely to lead people to adopt styles of drinking that were unwise, for example, by encouraging excessive drinking.In the case of ad (a), we considered that the claim “4 cans of DRTY and a scotch egg please” would be interpreted by consumers as referring to the rules implemented in 2020 during the coronavirus pandemic, where a person could order alcohol as long as it was paired with food. We considered that four cans of the product, which contained 4% ABV per can, would equate to roughly 6 units, which was nearly half of the NHS recommended maximum weekly alcohol consumption limit. We therefore considered that four cans was an excessive quantity for a single person to order at once.
Similarly in the case of ad (b), the ad showed a person taking a can from several cans contained in a cooler. The text of the ad “Solo DRTY’s in the garden?” made clear that the person in the ad was drinking alone and implied they would be consuming all of the cans shown. Although we acknowledged that ads (a) and (b) were light-hearted in tone, we considered that both depicted excessive drinking in a positive manner and were therefore irresponsible.
On that point, ads (a) and (b) breached CAP Code rule 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. (Alcohol).
2. Upheld
Before 31 December 2020, the CAP Code required that only nutrition claims listed in the Annex of Regulation (EC) 1924/2006 on nutrition and health claims on foods were permitted in ads 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. The Code defined a nutrition claim 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.
The CAP Code further required (both before and after 31 December 2020) that the only permitted nutrition claims that could be made in relation to alcohol were “low-alcohol”, “reduced alcohol” and “reduced energy”.We considered the claim “#lowcalorie” was equivalent to a ‘low energy’ nutrition claim, and the claims “#zerosugar” and “#nosugardiet” would be understood by consumers as equivalent to a ‘sugars-free’ nutrition claim. While those nutrition claims could usually be made in relation to foods or drinks which met the associated conditions of use, both before and after 31 December 2020, it was not permitted to make either a ‘low energy’ or ‘sugars-free’ nutrition claim in relation to alcohol.
We considered the claims “#carbfree” and “#nocarbs” suggested that the product had particular beneficial nutritional properties because it did not contain carbohydrates. We similarly considered consumers would interpret the claims “#ketodiet” and “#keto” as suggesting that the product could be consumed as part of a low/no-carbohydrate diet, and therefore that the product did not contain carbohydrates. The ad 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 either before or after 31 December 2020.Because the claims “#lowcalorie”, “#nosugardiet”, “#zerosugar”, “#keto”, “#ketodiet”, “#carbfree, and “#nocarbs” were nutrition claims that were not permitted for alcoholic drinks, we concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules
15.1
15.1
Marketing communications that contain nutrition or health claims must be supported by documentary evidence to show they meet the conditions of use associated with the relevant claim, as specified in the EU Register. Claims must be presented clearly and without exaggeration.
15.1.1
15.1.1
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
(Food, food supplements and associated health or nutrition claims) and
18.17
18.17
Marketing communications may give factual information about product contents, including comparisons, but must not make any health, fitness or weight-control claims.
The only permitted nutrition claims are "low-alcohol", "reduced alcohol" and "reduced energy" and any claim likely to have the same meaning for the consumer.
(Alcohol).
Action
The ad must not appear again in its current form. We told DRTY Drinks Ltd to ensure their future ads did not encourage excessive drinking. We also told them not to make non-permitted nutrition claims about alcoholic drinks.
CAP Code (Edition 12)
16.3 16.3.1 18.1 18.6 18.12 18.17 15.1 15.2 15.1.1
