Summary of Council decision:
Three issues were investigated, all of which were Upheld.
A TikTok post for Whisp Drinks’ hard seltzer alcoholic drinks, by influencer Rosie Breen, seen on 18 February 2022, featured a video titled “3 REASONS I DRINK WHISP ALCOHOL” in which she was seen holding a can of Whisp in each hand. The video went on to show Rosie Breen dancing and pointing to further captions including “Im [sic] on my weight loss journey & they’re only 63 calories a can” and “They actually get you drunk”. The caption of the post stated “#AD 10/10 beveragino I’ve been drinking for exactly ONE YEAR […]”.
The complainant challenged whether the claims:
1. “Im [sic] on my weight loss journey & they’re only 63 calories a can” was not permitted for alcoholic drinks; and
2. “They actually get you drunk” was irresponsible because it encouraged excessive drinking.
3. The ASA challenged whether the ad breached the Code because it featured someone who was, or seemed to be, under 25 years of age.
Wild Drinks Group Ltd t/a Whisp Drinks responded by stating that they would remove the post.
Rosie Breen said, regarding the first issue, that at the time she was new to working with brands, and was unaware of the sensitive nature of the message and of the Code rules relating to non-permitted weight-control claims for alcohol products. She apologised and said the post had been a reflection of her opinion of the beverage, and that she was happy to remove it and ensure future content was compliant with the rules.
In response to the second issue, Rosie Breen said her intention was never to present or promote irresponsible behaviour. She said that when she initially came across Whisp Drinks products, she was unsure of their purpose and therefore the comment “They actually get you drunk” aimed to highlight that the product still felt like an alcoholic drink.
She also confirmed that she was 24 years old at the time of the post.
TikTok said that the video was branded content promoting alcohol, which was globally prohibited on their platform, and that it had been removed.
Only nutrition claims authorised on the Great Britain nutrition and health claims (NHC) register were permitted in ads promoting food or drinks. The CAP 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 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”.
The Code allowed that ads for alcoholic drinks could give factual information about product contents. It was therefore permissible for advertisers to make factual numerical statements about the calorific content of an alcoholic drink in their advertising. However, the ASA considered that by preceding the “63 calories a can” claim with the word “only”, the ad suggested that the drink had the particular beneficial nutritional property of being low in calories (i.e. energy). Additionally, we considered the statement “Im [sic] on my weight loss journey” further emphasised that the product was low in calories.
The claim “only 63 calories a can” was therefore a nutrition claim equivalent to a low calorie/energy nutrition claim. However, it was not permitted to make a low calorie/energy nutrition claim in relation to alcohol. We therefore concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules
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 applicable register. Claims must be presented clearly and without exaggeration.
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).
The CAP Code required marketing communications to be socially responsible and contain nothing likely to lead people to adopt styles of drinking that were unwise, including encouraging excessive drinking. We noted the video was headed “3 REASONS I DRINK WHISP ALCOHOL” and included the statement “They actually get you drunk”. While we welcomed Whisp Drinks’ and Rosie Breens’ actions to remove the post after we had contacted them, we considered that the claim “They actually get you drunk” would be interpreted as encouraging excessive drinking. We therefore concluded that the post was irresponsible.
On that point, the ad 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. (Alcohol).
The CAP Code required that ads for alcoholic drinks should not show people who were, or appeared to be, under 25 years of age in a significant role.
We understood that Rosie Breen was 24 years old at the time the ad appeared, and she was featured holding and stating that she consumed the alcoholic product in the video. Therefore we concluded that the ad was in breach of the Code.
On that point, the ad 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).
The ad must not appear again in its current form. We told Wild Drinks Group Ltd t/a Whisp Drinks and Rosie Breen not to make non-permitted low calorie nutrition claims about alcoholic drinks, and to ensure that future marketing communications for alcoholic drinks did not encourage excessive drinking or show people who were, or appeared to be, under 25 years of age in a significant role.