Background
Summary of Council decision:
Four issues were investigated, three of which were Upheld and one Not upheld.
Ad description
Two sponsored Facebook ads, two posts on Served Drinks Ltd’s Instagram page and a marketing email:
a. A sponsored post for Served Drinks, seen on influencer Ellie Goulding’s Facebook page on 17 February 2022, stated, “If you’re like me, you love a drink but also enjoy an active lifestyle. My delicious alcoholic sparkling water is the best of both worlds”. Further text in the post stated, “[tick symbol] 57 cals … [tick symbol] 4% vol”.
b. A sponsored post, seen on the same influencer’s Facebook story on 19 February 2022, featured text stating, “You guys know I love a drink, but I also really care about my well-being. Since I launched my alcoholic sparkling water there is no going back for me!”. Further text in the post stated, “[tick symbol] 57 cals … [tick symbol] 4% vol”. The post also featured a video of the influencer in which she stated, “I love a drink, as I talk about a lot on my social media, but I also care about my health …That’s why I want to tell you about my new drink Served. So, my new drink Served is a hard seltzer, it has 57 calories ...”
c. An email from Served Drinks, seen on 18 January 2022, featured the text, “Forget Dry January … Is dry January becoming a little dry? There’s no reason you can’t enjoy a drink without setting you back! Our drinks only have 57 calories, 0g Sugar and are 4% ABV and are the perfect choice for a tipple without all the guilt”.
d. A post on Served Drinks’ Instagram page, seen on 15 October 2021, stated, “Nothing better than day dreaming and day drinking … @ your ultimate day drinking partner”.
e. Another post on Served Drink’s Instagram page, seen on 8 December 2021, stated, “Mid-week drinking season has arrived [heart emoji] [Christmas tree emoji]”.
Issue
We received 21 complaints. The complainants challenged whether:
1. the claims “[tick symbol] 57 cals” in ad (a) and “Our drinks only have 57 calories, 0g Sugar” in ad (c) were nutrition claims that were not permitted for alcoholic drinks;
2. the claims “If you’re like me, you love a drink but also enjoy an active lifestyle. My delicious alcoholic sparkling water is the best of both worlds”, “I care about my health” and “You guys know I love a drink, but I also really care about my well-being. Since I launched my alcoholic sparkling water there is no going back for me!” in ads (a) and (b) were general health claims that were not allowed for alcoholic drinks;
3. ad (c) irresponsibly suggested drinking alcohol might be indispensable and could overcome boredom by encouraging people who were doing ‘Dry January’ to drink alcohol; and
4. ads (d) and (e) encouraged drinking alcohol at times that were not considered socially acceptable and were therefore irresponsible.
Response
1. Served Drinks understood that the CAP Code allowed advertisers to provide factual information about the nutritional content of their products, including the calorific content, provided that there was no suggestion that the drink had the particular beneficial property of being low in calories. They said that ad (a) had a list of three factual statements about the product, separated from the rest of the body copy, with a tick symbol next to the words “57 cals”. They believed that was a statement of fact about the nutritional content of the product, which was not prefaced by words such as “only” or “just”.
They said they were aware of guidance issued by the ASA and CAP that phrases such as “zero sugar” should not be used. They accepted that the phrase “zero sugar” was a claim, rather than a statement of fact, not least because there was no reference to a unit of measurement. However, they believed ‘0g sugar’ was not a nutritional claim, but an accurate statement of fact that did not make a health, fitness or weight-control claim.
They said that they had withdrawn ad (c) and acknowledged that the word “only” should not be used in conjunction with a statement about the number of calories in a product. They said they would avoid using phrases such as “only 57 calories” in future. They believed the reference to “0g sugar” was not a claim, but simply a statement of fact. They said within the phrase “our drinks only have 57 calories, 0g Sugar”, the word “only” was an adjective used to describe the number of calories, not the amount of sugar.
2. Served Drinks understood that a general health claim was defined in the CAP Code as a reference to a general benefit of a nutrient or food for overall good health or health-related well-being. They said the words in ads (a) and (b) were not used to describe a benefit of their product, but to describe the influencer’s preferences and lifestyle, and what was important to her - that she both enjoyed consuming alcohol and having an active lifestyle and taking care of her well-being, as well as being environmentally responsible. They believed the words that she used could not reasonably be interpreted as being about the product itself and were therefore not general health claims.
3. Served Drinks believed the timing of ad (c), on 18 January, almost three weeks into Dry January, did not support the proposition that it suggested drinking alcohol was indispensable.
They pointed out that the artwork showed a can of Served, with half a grapefruit and two glasses of the drink, garnished with ice, a slice of grapefruit and sprig of rosemary, which suggested that the drink would be consumed by two people together in a sociable environment. They said there was nothing in the words or images used to suggest that alcohol could overcome boredom or that the ad was targeted at an individual who was bored and alone.
They understood that the CAP Advice Online entry on “Alcohol: Boredom and loneliness” expressly stated that a reference to Dry January was not always or inherently problematic, but that in many cases it would be, since the intended effect from alcohol marketers would often be that Dry January or sobriety was difficult or boring. They believed the phrase “Is dry January becoming a little dry?” was simply a play on words and was a modest reference that could not reasonably be said to claim that alcohol was indispensable and could overcome boredom. They believed that the combination of the timing of the ad, the imagery and the wording meant that it was on the right side of the line. They believed if the complaint was Upheld, it would be hard to conceive of circumstances in which a reference to Dry January would be permissible.
4. They pointed out that in ad (d) a woman was shown holding a single can of Served, and no other cans of Served were visible in the ad. Whilst there was a reference to “day drinking”, there was nothing in the image to suggest that the woman was intoxicated. Although the woman was drinking during the day, she was drinking responsibly. They were not aware of anything in the CAP Code that suggested it was irresponsible to refer to people drinking alcohol during the day, and they believed there were lots of examples of alcohol ads across all media which showed people drinking during the day.
They said ad (e) showed a man holding one can of Served, and there were no other cans of Served in the shot. The man was looking confidently into the camera and appeared entirely sober. They said there was a reference to the mid-week drinking season, but noted the post appeared on 8 December, and included both a heart and a Christmas tree emoji to indicate that it was a reference to the festive season, when people socialised during the week, as well as at the weekend.
They said there was nothing in the ad which implied or condoned drinking to excess. They were not aware of anything in the CAP Code that suggested alcohol should only be shown being drunk at the weekend.
Assessment
1. Upheld
The CAP Code required that only nutrition claims authorised on the Great Britain Nutrition and Health Claims register were permitted in marketing communications. It 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 that the only permitted nutrition claims that could be made in relation to alcohol were “low-alcohol”, “reduced alcohol” and “reduced energy”. However, the Code allowed that ads for alcoholic drinks could give factual information about product contents.
The ASA acknowledged that it was permissible for advertisers to make factual numerical statements about the calorific content of an alcoholic drink, such as “57 calories”. However, we considered that by preceding that statement with the words “Our drinks only have”, ad (c) suggested that the product had the particular beneficial nutritional property of being low in calories (i.e. energy). The claim “Our drinks only have 57 calories” in ad (c) was therefore a nutrition claim equivalent to a ‘low calorie/energy nutrition claim’, which was not permitted in relation to alcohol.
Similarly, we considered that by preceding the statement “57 cals” in ad (a) with a tick symbol, the ad suggested that the product had the particular beneficial nutritional property of being low in calories (i.e. energy). The claim “[tick symbol] 57 cals” in ad (a) was therefore a nutrition claim equivalent to a ‘low calorie/energy nutrition claim’, which was not permitted in relation to alcohol.
We also considered that the claim “0g Sugar” in ad (c), when read in the context of the sentence as a whole, alongside the claim, “the perfect tipple without all the guilt” suggested that the product had a particular beneficial nutritional property because it did not contain sugar. The nutrition claim ‘sugars-free’ could be made in relation to foods or drinks which met the associated conditions of use for the claim, but it was not a nutrition claim that was permitted to be made in relation to alcohol.
Because the ads included nutrition claims that the product was low in calories and contained no sugar, which were not permitted nutrition claims for alcohol products, we concluded that they breached the Code.
On that point, ads (a) and (c) breached CAP Code (Edition 12) rule
15.1.1
15.1.1
Only nutrition claims listed in the applicable register may be used in marketing communications.
Only health claims listed as authorised in the applicable register, or claims that would have the same meaning to the consumer, may be used in marketing communications.
(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).
2. Upheld
The CAP Code stated that ads for alcoholic drinks must not make any health, fitness or weight-control claims. Health claims were defined as those which stated, suggested or implied that a relationship existed between a food or drink or one of its constituents and health. That included references to general benefits of a food or drink for overall good health or health-related well-being.
We considered that the claim, “If you’re like me, you love a drink but also enjoy an active lifestyle. My delicious alcoholic sparkling water is the best of both worlds” in ad (a) was a general health claim because it implied the product was beneficial for overall good health or health-related well-being. We considered that the claim, “You guys know I love a drink, but I also really care about my well-being” in ad (b) was a general health claim, because it suggested the product was beneficial for health-related well-being.
Because such health claims were not permitted for alcoholic drinks, we concluded that the ads breached the Code.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules
15.1.1
15.1.1
Only nutrition claims listed in the applicable register may be used in marketing communications.
Only health claims listed as authorised in the applicable register, or claims that would have the same meaning to the consumer, may be used in marketing communications.
(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).
3. Upheld
The CAP Code required that marketing communications must not imply that alcohol might be indispensable or take priority in life or that drinking alcohol could overcome boredom, loneliness or other problems.
We considered that the phrase, “Is dry January becoming a little dry?”, would be likely to be interpreted by consumers to mean “Is dry January becoming a little boring or tedious?”. We noted that further text in the ad stated, “Forget Dry January” and “There’s no reason you can’t enjoy a drink without setting you back!” and considered that text was encouraging consumers who were doing Dry January to consume alcohol before the end of the month. We considered that the overall impression of the ad was that consumers were invited to drink alcohol to overcome the boredom or tedium of Dry January. We therefore concluded that the ad implied that drinking alcohol could overcome boredom and therefore breached the Code.
On that point, ad (c) breached CAP Code (Edition 12) rule 18.6 18.6 Marketing communications must not imply that alcohol might be indispensable or take priority in life or that drinking alcohol can overcome boredom, loneliness or other problems. (Alcohol).
4. Not upheld
The CAP Code required that marketing communications must be socially responsible and must contain nothing that was likely to lead people to adopt styles of drinking that were unwise.
We considered that although ad (d) referenced “day drinking”, the female in the image was shown with one drink in her hand and no other drinks were visible, which we considered suggested she was drinking responsibly and not to excess. She was shown relaxing in an outdoor environment and had her eyes closed, as though she was daydreaming (as referenced in the ad), which suggested she was enjoying time to herself. There was no suggestion that she was using alcohol as a means of escaping her responsibilities, such as work. We therefore did not consider the reference to day drinking in that context would be likely to lead people to adopt styles of drinking that were unwise.
We considered that the statement in ad (e), ““Mid-week drinking season has arrived [heart emoji] [Christmas tree emoji]” would be understood by consumers to refer to the increase in mid-week social events during the festive season. We noted that the man in ad (e) was holding one single drink and no other drinks were visible in the image. We considered that he was not depicted as drinking irresponsibly or to excess. We therefore did not consider the reference to mid-week drinking in that context would be likely to lead people to adopt styles of drinking that were unwise.
For those reasons, we considered the ads were not irresponsible or likely to lead people to adopt styles of drinking that were unwise.
We investigated ads (d) and (e) under CAP Code (Edition 12) 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. but did not find them in breach.
Action
Ads (a), (b) and (c) must not appear again in their current form. We told Served Drinks Ltd not to make health claims, or non-permitted nutrition claims, about alcoholic drinks or imply that alcohol could overcome boredom in their advertising.
