Background
Summary of Council decision:
Four issues were investigated, all of which were Upheld.
Ad description
A TikTok post on Charly Anne Collard’s account @charlyannec, published on 14 May 2023, featured a caption that stated, “What i [sic] eat in a day […] THANKYOU CORKYS”. The video featured various scenes and included a voiceover from Charly Anne Collard that stated, “I grabbed myself a meal deal […] because I needed to line my stomach ready for the Corky’s night out.” The video then showed Charly Anne Collard holding a bottle of Corky’s and doing a shot. The camera then panned to a table that contained nine bottles of Corky’s.
The voiceover then said, “I love Corky’s so I was excited to do a Corky’s night out with all my faves” and the camera panned around a room full of people. Several scenes then showed different people doing shots and drinking Corky’s straight from the bottle.
In a later scene the voiceover said, “By this point we were steaming, so we much appreciated the pizza. Can you believe they got us a party bus?” and the video showed people holding bottles of alcohol and dancing.
A later scene showed the people inside of a nightclub where people were dancing and sparklers were attached to bottles of vodka. The voiceover said, “Corky’s absolutely spoiled us; we got two bottles of vodka”.
Issue
The ASA received two complaints.
1. Both complainants challenged whether the ad was obviously identifiable as a marketing communication.
The ASA challenged whether the ad:
2. had been appropriately targeted;
3. was irresponsible because it condoned and encouraged excessive drinking and showed alcohol being handled and served irresponsibly; and
4. breached the Code because it featured individuals who were, or appeared to be, under 25 years of age.
Response
1., 2., 3. and 4. Global Brands Ltd said they had contracted Charly Anne Collard to create two paid-for video posts for the Corky’s brand. They provided a joint response on behalf of the parties. They said one of those videos was posted on TikTok on 19 May and had been marked ‘#ad’; that the other video had yet to be posted. They said the complained about video was not part of the contracted agreement and was created using behind-the-scenes footage captured by Ms Collard and was used as part of her “what I eat in a day” video series on TikTok. They said because of that, they did not consider the post to be an ad as defined by the CAP Code because it was created outside of the contracted videos and they did not have editorial control over the video. They were also not aware Ms Collard was using footage of their products in that way.Global Brands said the complained about video featured individuals drinking Corky’s straight from the bottle, which they said could be seen as being irresponsible. They also confirmed Leuan Jones and Kane Hinge were under 25 years of age.
They said the majority of Ms Collard’s followers on TikTok were over 18 and were therefore confident her profile and audience demographics were acceptable to advertise alcohol products. Ms Collard’s management agency provided a screenshot which showed the largest proportion of her followers on TikTok were aged 18 to 24, followed by those aged 25 to 34.
TikTok said the video appeared on their platform as user-generated content rather than a paid ad and was not therefore VSP-controlled. However, they said the promotion of alcohol was prohibited on their platform and that upon being notified of the complaint, they made the video unavailable to users in the EEA and UK because it violated their terms of service. They said had the creator engaged with TikTok’s disclosure tool as required by their terms of service, it would not have been permitted to be posted organically because the promotion of alcohol was prohibited under their Branded Content Policy.
Assessment
1. Upheld
The CAP Code stated that marketing communications must be obviously identifiable as such, and that they must make clear their commercial intent if that was not obvious from the context.
The ASA first assessed whether the TikTok post was an ad for the purposes of the Code. We acknowledged that Ms Collard had been contracted for two posts featuring the Corky’s brand on TikTok and that the complained about video was not produced as part of that agreement. However, because Ms Collard had been paid to promote the Corky’s brand in other videos and because Ms Collard said in the complained about video they had been given vouchers to order food, a party bus and two bottles of vodka when they were in the nightclub, we therefore considered this constituted payment to Ms Collard.
We next considered whether Global Brands had editorial control over the post. We noted the complained about post contained several scenes which used the same footage as the paid-for post published on 19 May, which had received sign-off from Global Brands. The contract also included a clause that required Ms Collard not to make any negative or derogatory comments towards Global Brands and that Global Brands retained the right to have Ms Collard remove derogatory comments if requested. We therefore considered Global Brands had a degree of editorial control over the post. Because there was both a payment to Ms Collard and editorial control over the post, the post was an ad for the purposes of the Code.
We then assessed whether the post was obviously identifiable as an ad. We noted the caption stated “THANKYOU CORKYS” and while that could have indicated that Ms Collard had a commercial relationship with Global Brands, we did not consider that it made it sufficiently clear that the post was an ad. The video contained no other identifiers to this relationship, and we therefore concluded that the post was not obviously identifiable as a marketing communication and did not make clear its commercial intent.
On that point, the ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
2. Upheld
The CAP Code stated that ads for alcoholic drinks or ads that featured or referred to alcoholic drinks must not be directed at people under 18 years of age through the selection of media or the context in which they appeared. It also stated that no medium should be used to advertise alcoholic drinks if more than 25% of its audience was under 18 years of age.
Ms Collard’s management agency provided a screenshot that showed a breakdown of Ms Collard’s followers on TikTok according to different age groups. It showed that 18- to 24-year-olds were the largest demographic that followed Ms Collard. However, the screenshot did not include the percentage that made up each age group, nor did it include data for any followers aged between 13 and 17.
Firstly, we assessed the demographic data provided by Ms Collard’s management agency. We noted their comments that the majority of her followers were over 18. However, because the proportion of under-18s who followed Ms Collard was not included, we could not take the data about her followers into account and, consequently, we could not be certain of the proportion of her followers who were under 18.
We also understood it was possible for posts from a TikTok account to be seen by users who did not follow that account via the “For You” page. We further understood that TikTok’s “For You” was the first page users saw after opening the TikTok app and the main way in which its users engaged with content. The page was algorithmically driven, and therefore users would see content from accounts that they didn’t follow but was likely to be of interest to them based on a number of factors. We also noted TikTok’s advertising policy prohibited ads for alcohol products. As such, we understood that the platform did not offer support or dedicated tools to advertisers in accommodating or targeting such ads. Because of that, it was not possible to exclude under-18s from viewing the ad. and we considered that the ad could have been seen by under-18s.
In the absence of specific targeting tools and relevant demographic data being provided, along with the way in which users engaged with TikTok, we concluded that insufficient care had been taken to ensure that the ad was not directed at people under 18, and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 18.15 (Alcohol).
3. Upheld
The CAP Code stated that marketing communications must be socially responsible and not contain anything that was likely to lead people to adopt styles of drinks that were unwise, including encouraging excessive drinking. The CAP Code also required marketing communications not feature alcohol being handled or served irresponsibly.
The ad opened with Ms Collard stating, “I grabbed myself a meal deal […] because I needed to line my stomach ready for the Corky’s night out.” We considered this implied that she intended to drink a significant amount of alcohol. The ad then featured a group of people drinking Corky’s, an alcoholic product, at a house in preparation for a night out and included a person drinking two shots in a row, and people drinking Corky’s straight from the bottle. The ad also showed people playing a drinking game where they span a wheel and drank a shot of the flavour of Corky’s it landed on. We considered those scenes suggested that alcohol was being consumed in excessive amounts. We also considered that drinking straight from the bottle meant the alcohol was not being measured out, and the multiple shots depicted alcohol being served irresponsibly. Ms Collard said “by this point we were steaming” which we understood was a term for being drunk and strongly implied excessive amounts of alcohol had been consumed.
We noted a scene on a ‘party bus’ showed a table with 12 shots of alcohol, three bottles of Corky’s and mixers and people dancing. Although that scene did not depict alcohol being consumed, we considered it would be interpreted that the alcohol was intended to be consumed by the members of the group.
The ad later cut to the group in a nightclub which showed bottles of Corky’s on the table. The voiceover said, “Corky’s absolutely spoiled us; we got two bottles of vodka” which we considered implied they would be consumed by the group in the nightclub.
We considered the scenes set out above encouraged excessive drinking and depicted alcohol being handled and served irresponsibly. As such, we concluded the ad was irresponsible and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 18.1 and 18.11 (Alcohol).
4. Upheld
The CAP Code stated that ads for alcoholic drinks should not show people who were under 25 years of age in a significant role.
The ad featured a large group of people drinking and going on a night out. Two of those individuals were Ieuan Jones and Kane Hinge, both of whom were seen drinking Corky’s. We understood they were aged 23 and 22 years old respectively. We therefore concluded the ad breached the Code on that basis.
On that point, the ad breached CAP Code (Edition 12) rule 18.16 (Alcohol).
Action
The ad must not appear again in the form complained of. We told Global Brands Ltd and Charly Anne Collard to ensure their ads were obviously identifiable as such, for example by including a clear and prominent identifier, such as “ad”. We also told them to ensure that ads for alcohol did not encourage excessive drinking or unwise drinking styles and to ensure alcohol was not featured being handled or served irresponsibly. We also told Global Brands and Ms Collard to ensure that ads were appropriately targeted and that ads for alcohol did not feature individuals who were, or seemed to be, under 25 years of age.
CAP Code (Edition 12)
2.1 2.3 2.4 18.1 18.11 18.15 18.16
