Round-up of ASA Rulings in Food & Drink Sector (February)

February was a month of ASA (Advertising Standards Authority) rulings in the food sector concerning responsibility in adverts;
- social responsibility for advertising alcohol; (not appealing to under 18s or encouraging excessive consumption,) 
- not encouraging unsafe practices; and
- not objectifying women.

The general rulings on prohibition of general and unauthorised health and nutrition claims in food continue, but Red Bull uses humour (plus a handily registered trademark) to buck the trend.

  1. Social responsibility
  • Alcohol - Appeal to children

Aldi Stores – Kevin the Carrot:  A TV ad for Aldi featured a computer-generated image of Kevin the Carrot (Kevin), parodying film ‘the Sixth Sense’ with a host of alcohol ‘spirits’.  Aldi stated whilst Kevin was intended to be humorous, it was not designed to have specific appeal to under-18s. Aldi stated because the ad was promoting alcohol, it was scheduled in accordance with the BCAP Code and therefore was not aired adjacent to programmes likely to appeal to under-18s. Clearcast stated Aldi’s 2017 Christmas campaign and the overall theme was likely to have general appeal rather than appealing specifically to under-18s and was given the appropriate scheduling restriction that applied to all ads featuring alcohol.

The ASA however considered that Kevin the Carrot appeared to be childlike and had a high-pitched voice, similar to that of a young child. Furthermore, the character was sold as a soft toy during the Christmas period and was popular with young children, they therefore considered that Kevin was likely to have strong appeal to audiences under the age of 18. Other elements such as the tone of the voiceover was reminiscent of a children’s story and the ending of the ad, showing Kevin being frightened by another character, contributed to the overall effect of the ad having strong appeal to under-18s. As a result the complaint was upheld and the ASA concluded the ad was irresponsible.

  • Alcohol - Excessive consumption

Epic Pub Company (internet - own website)  The company website advertised a Christmas menu brochure with an offer for alcoholic drinks “barrow of booze” (£20.00 per person - Min 15 people) Includes: - 2 boxes of wine, 3ltr (White, Red or Rose) - 20 bottles of Corona or Peroni - Bottle of Tanqueray Gin - Bottle of Ketel One Vodka - Bottle of Tequila - Mixers. The ASA upheld the complaint that the ad was irresponsible on the grounds that the "barrow of booze" offer was likely to encourage excessive drinking.  

The ASA noted that the offer was available for a group consisting of a minimum of 15 people with a meal. They however calculated that the amount of alcohol listed in the offer as available for consumption, for a group of 15, was approximately 12 units per person. The Office of National Statistics (ONS) defined binge drinking as having over eight units in a single session for men and over six units in a single session for women. The UK’s health authorities had not formally set or published the number of units which they would define as “binge” or excessive drinking, but it was noted that the UK Chief Medical Officers’ (CMO), who provided the relevant governmental advice, had recommended that it was safest for men and women not to drink regularly more than 14 units per week and it was best to spread this evenly over three days or more. The tone and implication of the pre-order did not specify that the drinks offer was only intended to be served alongside a meal. The ASA therefore considered that those elements reinforced the impression that the offer consisted of a very large amount of alcohol and was likely to encourage excessive drinking.

  • Encouraging unsafe practices

The Wrigley Company Ltd –  A TV ad for Extra chewing gum, featured a young woman stood in a football kit on a football pitch whilst chewing, appearing to be preparing to take a penalty kick. The shots were accompanied by a voice-over which stated, “Time to shine. Extra.” The issue concerned the practice of chewing gum in a sports setting and if the ad condoned or encouraged a dangerous practice and/or featured behaviour that could be dangerous for children to emulate. Wrigleys argued the ad did not depict the footballer in full motion whilst chewing gum, but stationary before the penalty kick.

The ASA noted the setting of a football game was easily recognisable and easy to emulate, with a prominent focus on the woman chewing gum. Although she was shown stationary, the ASA considered it was clear she was about to take the penalty and the suggestion was she had been chewing the gum during the match. The ASA understood there had been several reported incidents of people choking on gum whilst playing sports. It was therefore considered that chewing gum whilst playing sports was an unsafe practice and because it was held the ad condoned and encouraged this it was found to be in breach of the Code.

  • Objectifying women

Thomas Tunnock Ltd –  A poster for Tunncocks Tea Cakes showed an image of a female tennis player holding a tea cake in place of a tennis ball at the top of her thigh, with her skirt raised at the hip. Text underneath the image of the women stated “Where do you keep yours?” with text underneath the product image stating “Serve up a treat.” Although Tunncocks argued that the teacake was simply there to replace the tennis ball the ASA upheld the complaint. The tennis player’s bare thigh was exposed by her lifting up her skirt and her underwear clearly visible. While the ASA acknowledged the ad was placed opposite an arena hosting a tennis match, they considered it bore no relevance to the advertised product and the phrase “serve up a treat” was understood to be a double entendre, implying the woman featured in the ad was the “treat. The ASA considered that although the image was only mildly sexual in nature, when combined with the phrase “serve up a treat” it had the effect of objectifying women by using a woman’s physical features to draw attention to the ad. In light of those factors, it was concluded that the ad was likely to cause serious offence to some consumers and was socially irresponsible.

2.    Health and nutrition claims

  • Humour and fantastical tone save Red Bull from implied health claim (alongside trademark registration)

This is an important ruling where the ASA actually did accept humour and fantastical tone prevented an implied health claim where usually a strict interpretation is applied.

Two TV ads for Red Bull:

  1. The first ad featured an animation of a man playing chess with a robot. The robot said, “You don’t have a chance against me. I can calculate 90 trillion moves in advance.” The man then opened a can of Red Bull and drank from it. The robot said, “Not fair! Not fair!” and knocked its chess pieces off the board. The ad ended with an image of a can of Red Bull and the strapline “Red Bull gives you wiiings”, which was also stated in a voice-over.
  2. The second ad featured an animation of two smartphones sitting on a bench in a park. The first phone said, “Look at us, sitting alone without our users.” The second phone said, “Can you imagine, mine went jogging. Out in nature.” The first phone said, “Yep, lost control of them. No more liking and sharing.” The second phone said, “That’s nothing, they’ve got real friends again, not followers.” The first phone said, “And they were helpless, depending on us all the time.” The second phone said, “Infuriating. We should have stopped this Red Bull; everyone knows it vitalises body and mind.” The first phone said, “It’s getting colder.” A voice-over said, “Too late, ‘cos Red Bull gives you wings.” An image of a can of Red Bull Sugarfree appeared on screen with the strapline “Red Bull gives you wiiings”.

The issues raised were whether there was an implied health claim for brain function that was not authorised on the EU Register of nutrition and health claims made on foods (the EU Register) and secondly whether “it vitalises body and mind” was a general health claim that was not accompanied by a specific authorised health claim on the EU Register.

Red bull responded that the phrases “Red Bull gives you wiiings” and “it vitalises body and mind” were both trademarks registered before 1 January 2005, which exempted them from having to comply with the Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation) until January 2022. They provided evidence of the trademarks.

Furthermore, it was argued the statement “Red Bull gives you wiiings” was not a health claim. The words were clearly fanciful and without a specific meaning that could be taken literally by consumers. In particular it did not state, suggest or imply a relationship existed between any Red Bull product or one of their constituents and health.  

Red Bull stated both ads were light-hearted cartoons that used a fantastical way of story-telling that should not be, and largely was not, taken literally by consumers.

The ASA stated, on balance, for the first advert involving the chess playing robot and the strapline “Red Bull gives you wiiings” given the humorous, fantastical tone of the ad (90 trillion moves is not possible in a chess game) and the lack of any overt reference to a health benefit, they considered that consumers were unlikely to understand that the ad implied a relationship between a food, or ingredient, and health.  However, the ASA did consider that “it vitalises body and mind” in the second ad would likely be understood as a reference to a general benefit of the drink for overall good health or health-related well-being. Under the Regulation, this type of claim was acceptable only if accompanied by a specific authorised health claim. However, as the phrase had been trademarked prior to 1 January 2005 it satisfied the exemption permitting this. 

  • General rulings on Health & Nutrition Claims in food

Source Ltd & Rosemary’s Water – Usual service by the ASA resumed in that complaints concerning a direct mailing (Source Ltd) and magazine/press ads, paid for tweets Instagram and website (Rosemary’s Water) that listed various specific and general health claims, claims to prevent, treat or cure human disease (Source Ltd) and recommendations of an individual health professional, breached the code and Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation) were all upheld.

Rosemary’s Water did seek to argue on the basis of specific health claims being “on hold” for botanical ingredients. However, this simply meant that such claims could only be used, provided the use had the same meaning as the proposed claim and they were used in compliance with the CAP code (i.e. the claims were substantiated by evidence.) The ASA examined this point and found only a claim of ‘antioxidant properties’ of rosemary was relevant as an on-hold claim, and this related to prolonging the shelf life of foods only as a food additive rather than any specific health property.

Further, in relation to recommendations made by each company referencing an individual professional the ASA maintained that consumers would understand a named doctor to be an individual health professional (Source Ltd/Rosemary’s Water) and that “botanical scientists” in the context of the ad would have the same meaning and implications for consumers’ purchasing decisions (Rosemary’s Water.)

In both rulings the ASA held the ad must not appear in its current form.

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