Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one Upheld.
Ad description
A TV ad for Hells Beer by Camden Town Brewery, seen in August 2020, featured animated cartoon characters drawn in colourful, surreal style. A woman stated, “So, in conclusion, 2020 is bad” while pointing to a pie chart titled “2020 BAD”. She was surrounded by a group of people, and one woman responded, “If only we brewers at Camden Town lager could do something” while a man stated, “But all we’ve got is a super-fresh tasting beer”. Another man had tears streaming down his face and stated “Curse this delicious lager”. Another man said, “Thought of it. What if we give the beer to people for free?” An animated beer glass transformed from a sad face to a happy face. The woman asked, “All in favour?” and everyone raised their hands and responded with “Aye”.
A man in a suit objected stating, “Unfortunately I’ve been running the numbers …”, but was cut off by a man blowing a trumpet. A cat stated, “See the code, scan it with your phone camera. Win delicious Camden Hells Lager … if you’re lucky”, while a graphic of phone with a QR code appeared followed by the text “YOU WON” and an image of a can of the lager. Superimposed text stated “18+, UK residents only. One win per person. Internet required. Subject to availability, offer ends 30 August. Drink responsibly. T & Cs apply”. A woman then popped up and shouted “Release the beers”. On-screen text stated “SCAN THIS IT’S FREE BEER. WHY WOULD YOU NOT? FRESH BEER FROM YOUR TELLY. DON’T JUST SIT THERE” while the QR code popped up on screen at various intervals, with arrows pointing to it, featuring the text “SCAN”. On-screen text stated “LAST CHANCE” with the QR code displayed on screen. A man chanted, “T’s and C’s apply, T’s and C’s apply.”
Issue
The ASA received two complaints:
1. One complainant, who felt that the cartoon characters and setting associated the ad with youth culture, challenged whether the ad was likely to appeal strongly to under 18s.
2. One complainant challenged whether the promotion was misleading because after scanning the code, they were placed in a virtual queue for over an hour before being told the promotion had ended due to high demand.
Response
1. Camden Town Brewery Ltd said they did not consider that either the ad or its illustration would have strong appeal to anyone under 18. They acknowledged that care needed to be taken when using cartoons in connection with alcohol advertising and had regard to the ASA’s guidance note on the use of cartoons, animals and characters in alcohol advertising. They considered that adult animation did not fall into the same category as children’s cartoons and therefore would not necessarily have a particular appeal to those under 18.
The ad included design styles from four illustrators whose styles were adult in nature and designed to be enjoyed by adults. The characters portrayed in the ad did not behave in a juvenile or adolescent manner and did not depict youth culture. The ad was a parody of a team meeting at Camden Town Brewery and depicted fictional characters inspired by the Camden Brewery team discussing how they might cheer people up during the pandemic. The finance manager raised budget constraints which children would be unlikely to understand.
The ad which displayed 18+ was not shown during or close to children’s programmes. To ensure that under 18s were unable to take part, Verifymyage, a third party age verification software to determine that participants were over 18 was used. Of the 13,382 checks that were conducted by Verifymyage, four people failed verifications, which further demonstrated that the ad did not have a particular appeal to under 18s. Clearcast said that they were aware that animation had been used in TV advertisements for alcohol before. Nevertheless, they had advised Camden Town Brewery that care would be needed to ensure the visuals were more likely to appeal to adults than under 18s. Several characters and animation styles were considered before Clearcast accepted the ones that were used in the final ad. They approved the visuals on the basis that they were more in line with a graphic novel or adult cartoon style of animation than a child-friendly style that would be seen in children’s programming. They felt that was in line with the animated adverts that had previously been aired and was unlikely to be associated with youth culture.
2. Camden Town Brewery said that they had set up a prize draw, with a chance to win either 6 x Hells Lager cans, 6 x Hells Lager bottles, 12 x Hells Lager cans or 24 x Hells Lager cans. Participants had to scan the QR code at the end of the ad in order to have a chance to win. If a phone camera was pointed at the screen when the QR code was shown, the camera would pick up the QR code regardless of the fact the code was moving and participants would then click the link that appeared, and entered into the queue.
Prizes were administered on a first-come, first-served basis for participants who were quickest to scan the QR code. They said that because it was outside of their control which participants scanned the code quickest, and that the type of prize, comprising either a 6-, 12- or 24-pack, was allocated randomly, the promotion was akin to a prize draw. A total of 155,818 people had scanned the QR Code to enter the prize draw, of which 12,600 had won, and the prizes were distributed per ad pro rata to the estimated reach of the programme the ad was scheduled during. The final number of prizes awarded was 12,295 because some of the winning participants did not click through past the virtual queue once they had won a prize, and some participants entered more than once. Non-claimed prizes were rolled over to the allocation for later slots if possible. They did not consider that 12,295 prizes out of 155,818 entrants comprised a large number of winners as would be expected in a giveaway. They said that both the ad and updates to participants during the virtual queue made clear that entrants would be in with a chance to win free beer if they were lucky.
While participants were in the queue, text stated "Luck loading" and subsequently "Pay attention, as if you win beer, you'll only have 10 minutes to click through to claim your prize, or it will be reallocated to someone else" which they felt emphasised the luck element and illustrated to participants that it was a prize draw. They believed that the ad did not mislead consumers as to their chance of winning, or give any indication that if they entered the competition, they would be guaranteed to win free beer.
The terms and conditions were made available via Camden Town Brewery’s website to winning participants after they had scanned the QR code and before they clicked on the link to claim their prize. Winning participants were taken to the Camden webshop in order to redeem their prize. It was necessary to implement the virtual queue to avoid crashing the servers on the website and to ensure that all winners were able to claim their prize.
Camden Town Brewery said that they had encountered a technical problem which caused the wait time in the queue to be extended on three of the dates the ad had been run. They did not record the average wait time for each spot or number of participants who were offered the discount during the queue process. However, given that 155,818 people entered in total and 12,600 free beer prizes were allocated, they estimated that a maximum of 143,218 were told all the free beer prizes had been won. Participants who stayed in the queue and did not win a prize were also offered a 20% discount. They estimated the wait time for the ad on two channels. In one case the average wait time was 15-20 minutes and in the other, it was 45-60 minutes. The estimated waiting time was based on the server’s capacity to process the number of scans of the QR codes and while participants were waiting, they reiterated that there was only a chance that they would win free beer. The queue was closed as soon as all prizes had been won and all participants still in the queue at that point were also offered the 20% discount.
Camden Town Brewery provided an appendix of the number of prize allocations for each time slot when the ad was shown. They acknowledged that the ad could have made clearer that the promotion was a prize draw and said that they would be careful about their use of language when communicating prize draw promotions in the future to avoid conflating a prize draw with a giveaway.
Clearcast said they understood that not everyone who entered the prize draw would automatically win free beer and that there would be 1,500 winners. They had noted Camden Town Brewery’s intention to include the T&Cs for the offer along with the messaging “subject to availability”, but made them aware that this alone would not be sufficient if consumers missed out on the offer. For this reason, Camden Town Brewery chose to include the claim: “Win delicious Camden Hells lager, if you’re lucky” in the voiceover. As the ad made clear that consumers would have to be “lucky” to win the beer, they expected consumers would understand that the prizes were limited and there was no guarantee of success if they entered. Because of that, Clearcast did not believe that the ad was misleading.
Assessment
1. Not upheld
The BCAP Code stated that alcohol ads must not be likely to appeal strongly to people under 18, especially by reflecting or being associated with youth culture or showing adolescent or juvenile behaviour. The scenario portrayed in the ad appeared to be a parody of a work setting, where coworkers were discussing the bad outcomes of 2020 in light of the pandemic, and how to execute a strategy for their products that could cheer people up. Much of the humour was derived from workplace tropes that would be less meaningful to younger people. While the characters were drawn in colourful, surreal styles, we considered they were more reminiscent of styles used in cartoons aimed at an adult audience. The characters did not behave in a juvenile or adolescent manner and the content of their discussion did not reflect youth culture. We concluded that the ad was unlikely to appeal strongly to under 18s.
On that point, we investigated the ad under BCAP Code rule 19.15.1 19.15.1 be likely to appeal strongly to people under 18, especially by reflecting or being associated with youth culture or showing adolescent or juvenile behaviour (Alcohol), but did not find it in breach.
2. Upheld
The ad stated “What if we gave the beers away for free” and “See the code, scan it with your phone camera. Win delicious Camden Hells Lager … if you’re lucky”. We considered that viewers would understand from the ad that if they scanned the code, they would be eligible to obtain free beer. However, we considered that the nature of the promotion was not clear. On the one hand, references to “winning” and viewers being “lucky” suggested it was a prize draw, which would involve an element of chance. On the other hand a character described the offer by saying “What if we give the beer to people for free?” and a bureaucratic character suggested the plan might be too expensive to go ahead with. Those elements, along with the exhortation to act quickly, emphasised by repetitive on-screen claims such as “SCAN THIS IT’S FREE BEER. WHY WOULD YOU NOT? FRESH BEER FROM YOUR TELLY. DON’T JUST SIT THERE” suggested a giveaway, where allocation was determined by who got there first. We considered that created an ambiguous impression that was likely to mislead consumers about what kind of promotion was being run.
We noted that Camden Town Brewery considered the promotion to be a “prize draw”, and we assessed whether that was the case. In a prize draw, the number of prizes available was usually limited, and winners were allocated randomly, whereas in a giveaway, significantly more gifts were available and consumers were usually awarded on a first-come, first-served basis.
In prize draws, prizes were awarded in accordance with the laws of chance and winners were selected by a computer process that produced verifiably random results, or by an independent person, or under the supervision of an independent person. Therefore, in order for the promotion to be a prize draw, winners would need to be chosen at random from all of the valid entries entered. However, we understood that the free beer was awarded on a first-come, first-served basis to those who were the quickest to scan the QR Code, so the likelihood of getting beer was primarily dictated by their response time. That did not amount to a random allocation of prizes as would be expected in a traditional prize draw. Entrants who were the quickest to scan the Code and had therefore successfully claimed free beer were subsequently randomly allocated either a 6-, 12- or 24-pack. The element of random allocation did not apply in the selection of those who would receive free beer, as would be the case in a prize draw.
Just over one in 12 participants were able to redeem the offer and we considered that this comprised a larger proportion of successful participants than that expected in a prize draw. For those reasons, we considered that the promotion was a giveaway rather than a prize draw. We therefore expected to see evidence from Camden Town Brewery to demonstrate that they had made a reasonable estimate of the likely demand. With that done they then needed to show that they either were capable of meeting that demand, or that they had provided clear information in the ad about any limitations on availability so that consumers could make an informed decision about whether or not to participate.
We understood that the ad was seen during two Champions League semi-final matches, and the estimated audience reach for each game was 700,000. For the first game, 1,117 prizes were allocated and for the second game 2,794 prizes were allocated. There were also a number of other slots during different programmes when the ad was shown. We understood that Camden Town Brewery had allocated the number of free beer packs per slot pro rata based on the estimated reach of the programme. However, it was not clear why Camden Town Brewery had chosen the particular ratio of beer packs to estimated audience that they did, and we had not seen evidence that they had taken any other factors into account for example, the demand experienced in similar previous promotions.
Following the launch of the promotion during the two Champions League games, Camden Town Brewery had posted on social media publicising the promotion and inviting people to sign up to get alerts the next time the ad was shown on TV. We considered that was likely to have increased the demand for the free products by increasing the audience of the promotional ads specifically beyond just that of the audience who happened to be watching the programmes when the ads were shown and therefore increasing the likely response to the promotion. Again, we had not seen evidence from Camden Town Brewery that showed that they had assessed the likely impact of that inflated demand. We therefore considered that Camden Town had not made a reasonable estimate of the likely response to the promotion.
We then assessed whether the ad conveyed sufficient, clear information about limitations on availability. While the ad included text stating “subject to availability”, we did not consider that was sufficient to convey to viewers how limited promotional items would be in practice. Furthermore, because the opportunity to take up the promotion, by scanning the code on screen, was time limited, we considered viewers would be unlikely to have time to register that information. We understood that the claim “Win delicious Camden Hells lager if you’re lucky” had been included in order to convey that availability was limited. However, we again did not consider that the reference to being “lucky” was sufficient to convey how limited promotional items might be in practice and, as discussed above, was likely to suggest to some consumers that a different type of promotion altogether was being run. We therefore considered that the ad did not make clear the likely limitations on availability. We were concerned that the absence of a reasonable estimate of demand combined with the lack of necessary information in the ad about the limitations on availability had led to a very high response with some entrants waiting up to an hour and a large numbers of entrants not being awarded any products. Because the ad presented a giveaway of free items in an unclear way that confused it with a prize draw, and because Camden Town Brewery had not made a reasonable estimate of demand or made sufficiently clear how limited availability of free beer was likely to be in practice, we considered that the ad was misleading and breached the Code.
On that point, the ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
In setting or revising any such standards, Ofcom must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of these matters:
a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
b) the likely size and composition of a potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
c) the likely expectation of the audience as to the nature of a programme's content and the extent to which the nature of the programme's content can be brought to the attention of potential members of the audience;
d) the likelihood of persons who are unaware of the nature of the programme's content being unintentionally exposed, by their own actions, to that content;
e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section...".
Section 319(4).
(Misleading Advertising).
Action
The ad must not appear again in its current form. We told Camden Town Brewery Ltd to ensure that they made clear the nature of their promotions, including by distinguishing between prize draws and giveaways. We also told them to ensure that they made a reasonable estimate of the likely demand and either show that they were capable of meeting that demand or that they had clearly communicated information about limited availability to consumers.
