Background

Ad description

A paid-for post on Instagram from BrewDog, for an alcoholic hard seltzer drink, posted on 21 January 2021, included an image of a can of Clean & Press Hard Seltzer and the text “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY”. Text below the image stated “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press.”

Issue

1. The ASA challenged whether the claims “only 90 calories per can” and “no carbs or sugar” were nutrition claims that were not permitted for alcoholic drinks.

2. Five complainants challenged whether the claims “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY” and “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press” implied that the drink was healthy and were therefore general health claims that were not permitted for alcoholic drinks.

3. The ASA also challenged whether the claim “a little bit of alcohol” implied that the drink was low alcohol, which was not a permitted claim for the drink because it had an alcoholic strength by volume (ABV) of 5%.

Response

1., 2. & 3. Brewdog plc responded that, although the claims in the ad were intended to be tongue in cheek, they accepted that they breached the Code and agreed that they would not be used in future campaigns.

Assessment

1. Upheld

The CAP Code required that only nutrition claims listed in the Annex of Regulation (EC) 1924/2006 on nutrition and health claims on foods were permitted in ads promoting foods or drinks. From 1 January 2021, only nutrition claims authorised on the Great Britain nutrition and health claims (NHC) register were permitted in marketing communications. 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”.

The ASA considered the claim “no carbs or sugar” suggested that the product had particular beneficial nutritional properties because it did not contain carbohydrates or sugar. The ad therefore included a nutrition claim that the product did not contain carbohydrates, which, in addition to not being permitted to be made in relation to alcohol, was not permitted to be made in relation to any food or drink product. 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.

The CAP 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, such as “90 calories per can”. However, we considered that by preceding that statement with the word “only”, the ad suggested that the drink had the particular beneficial nutritional property of being low in calories (i.e. energy). The claim “only 90 calories per 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.Because the claims “only 90 calories per can” and “no carbs or sugar” were nutrition claims that were 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 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 EU Register. Claims must be presented clearly and without exaggeration.    15.1.1 15.1.1 Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.  (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 allowed that ads for alcoholic drinks could give factual information about product contents, including comparisons, but must not make any health, fitness or weight-control claims. Health claims were defined as those that 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 acknowledged that the claims “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY” and “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press” presented information in a tongue-in-cheek manner. However, we considered that consumers would understand from the ad that the advertiser was intending to communicate that the product was in fact healthy, but that they were not permitted to inform consumers of that fact. We considered the ad therefore implied that the drink was beneficial to overall good health or health-related well-being.

Because such health claims were not permitted for alcoholic drinks, we concluded that the ad breached the Code.On that point, the ad breached CAP Code (Edition 12) rules  15.2 15.2 References to general benefits of a nutrient or food for overall good health or health-related well-being are acceptable only if accompanied by a specific authorised health claim.  (Food, food supplements and associated health or nutrition claims)  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

As referenced at point 1, the CAP Code required that the only permitted nutrition claims that could be made in relation to alcohol were “low-alcohol”, “reduced alcohol” and “reduced energy”. It also required that nutrition claims could only be used in relation to products that met the conditions of use associated with the nutrition claim.We considered that the claim “a little bit of alcohol” was likely to be understood by consumers to mean that the product was low in alcohol. Low alcohol claims were permitted for alcoholic drinks under the Code. However, the UK Food Information Regulations (2014) stated that the description ‘low alcohol’ (and any other word or description that implied that the drink was low alcohol) should not be applied to any drink of more than 1.2% ABV. We understood that Clean & Press contained 5% ABV and therefore did not meet that definition.Because we considered that consumers would under the claim “a little bit of alcohol” to mean that the product was low alcohol, but that the product did not meet the definition of low alcohol, we concluded that the claim breached the Code.

On that point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising),  15.1 15.1 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 EU Register. Claims must be presented clearly and without exaggeration.    15.1.1 15.1.1 Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/nutrition_claims_en.htm
Only health claims listed as authorised in the EU Register, or claims that would have the same meaning to the consumer may be used in marketing communications.
http://www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.  (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).

Action

The ad must not appear again in its current form. We told Brewdog plc not to make health claims, or non-permitted nutrition claims about alcoholic drinks. We also told them not to make permitted nutrition claims for alcoholic drinks if the product did not meet the associated conditions of use for the claim.

CAP Code (Edition 12)

18.9     18.17     15.1     15.2     15.1.1     18.1     18.6     18.7    

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