Summary of Council decision:
Two issues were investigated, both of which were Upheld.
An Instagram story on Adam Cuthbertson’s page, @cuthbertson85, seen on 15 August 2021, featured a post shared from @thelowcal_ page that included a bottle of The Lowcal Lager with text that said “Now available At the New George Kirkstall” and included the caption “Now Available at the New George …”.
1. Two complainants challenged whether the post was obviously identifiable as a marketing communication.
2. The ASA challenged whether the product name “The Lowcal Lager” was a nutrition claim that was not permitted for alcoholic drinks.
1. The Lowcal Ltd said the Instagram story was removed shortly after it was posted because it did not include the identifier “#ad”. They had reminded staff that their posts relating to Lowcal needed to be clearly labelled as ads. They had taken steps to ensure that it did not happen in future, including implementing an internal vetting process.
2. They said the name “The Lowcal Lager” was a play on the term “local”, as a reference to the “local pub”. The Lowcal shareholders were based in Leeds, the product was brewed and packaged locally, and the packaging incorporated the colours of a local sports team.They did not believe the product name “The Lowcal Lager” was a nutrition claim. In their opinion, the advertising for a low calorie product would use wording such as “low cal”, “low kcal” or “low calorie”, with a space after the word “low”. The product had an alcohol strength of 4.2% ABV and contained 88 calories per 330ml. The product stated on the label that it contained 88 calories. They provided examples of other lagers and their calorie contents.
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 understood that Adam Cuthbertson was the Director of The Lowcal Ltd and therefore had a commercial relationship with the brand. However, we considered it was not immediately clear to consumers that he had a commercial interest in The Lowcal Ltd from the post on his personal account. We noted that the post did not feature the label “#ad”, or similar, prominent identifier. While we acknowledged that they had removed the post, we concluded that because it had not included an identifier, the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 2.1 and 2.3 (Recognition of marketing communications).
Only nutrition claims authorised on the Great Britain nutrition and health claims (NHC) Register could be made in ads promoting food or drink products. 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 that the only permitted nutrition claims that could be made in relation to alcohol were “low-alcohol”, “reduced alcohol” and “reduced energy”.
We considered consumers would understand the term “Lowcal”, in the context of an ad for a drink, to be a reference to its calorie content. We therefore considered consumers would understand the product name, “The Lowcal Lager”, to mean that the drink had beneficial nutritional properties because it was low in calories. We noted the advertiser’s view that the claim was a play on the word ‘local’ but we considered the word ‘Lowcal’, which was a common shortening of the phrase ‘low calorie’, was also intended to be understood to relate specifically to the low calorific content of the drink.
However, it was not permitted to make a “low calorie” nutrition claim in relation to alcohol. Because the product name “The Lowcal Lager” included a nutrition claim that was 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, 15.1.1 (Food, food supplements and associated health or nutrition claims) and 18.17 (Alcohol).
The ad must not appear again in the form complained of. We told The Lowcal Ltd to ensure that in the future their ads were obviously identifiable as marketing communications, for example, by including a clear identifier such as “#ad”. We also told them not to make non-permitted nutrition claims about alcoholic drinks.