Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TikTok post from the account of Danielle Walsh (@danniwalsh123), posted on 5 October 2023. The video showed Danielle Walsh standing behind a bar, with a row of glasses in front of her, and music playing in the background. Addressing the camera, Danielle Walsh stated, “So for pres [sic] tonight, let me show you what we’re drinking. We’re going to do four in one, because we’re getting lit tonight.” She then made four cocktails, using different flavours of the VK alcopop brand mixed with spirits including vodka, peach schnapps, Amaretto and whiskey liqueur, which were free poured into the glasses. After making each drink, she stated, “Let’s try it!” and quickly drank each drink. On-screen images of recipes for each cocktail appeared as they were made, which included the name of the cocktail, its ingredients, and featured the VK logo. Text at the bottom of the video stated, “Lets [sic] make some drinkssss… #forprestonight #woowoo #partystarter #venom #cocktails #vk #letstryit #letsgetlit”.
Issue
1. The complainant challenged whether the ad was irresponsible, because it encouraged excessive consumption of alcohol and featured alcohol being served irresponsibly.
2. The ASA challenged whether the post was obviously identifiable as a marketing communication.
Response
1. & 2. Global Brands Ltd t/a VK confirmed that they had provided Danielle Walsh with the alcoholic drinks used in the ad, in return for her promotion of their brand via her TikTok channel. They explained that they had asked Ms Walsh to create a series of videos which showed the creation of each cocktail, rather than one video in which four cocktails were made and consumed. They had stipulated that their products should be promoted in a responsible manner, and had asked to approve the videos prior to their publication. They said that had not happened, however, and that Ms Walsh had posted the videos without their final approval. VK accepted that the video should have been clearly labelled as an ad. They said they had asked Ms Walsh’s agent to remove the video on several occasions, but their requests had not been acknowledged.
Danielle Walsh said that VK had not paid her for the post, and said she would remove the video while it was under investigation.
TikTok said the promotion of alcohol was prohibited on their platform, and that the ad had been deleted by the creator. They said had the creator engaged with TikTok’s disclosure tool as required by their terms of service, it would not have been permitted to be posted organically because the promotion of alcohol was prohibited under their Branded Content Policy.
Assessment
1. Upheld
The CAP Code stated that marketing communications must be socially responsible and not contain anything that was likely to lead people to adopt styles of drinks that were unwise, including encouraging excessive drinking. The Code also required marketing communications not to feature alcohol being handled or served irresponsibly.
The video opened with Danielle Walsh stating, “So for pres tonight, let me show you what we’re drinking.” The ASA understood that “pres” was a reference to “pre-drinking” or “pre-drinks”, the practice of consuming alcohol at home before going out to a pub, bar or club, where further alcohol would be consumed. We understood that pre-drinking was often intended to achieve intoxication prior to attending a licensed venue and, as such, we considered that referencing “pres” in the ad implied that alcohol was going to be consumed in excessive amounts.
Ms Walsh then stated, “We’re going to do four in one, because we’re getting lit tonight.” We understood that the word “lit” had a long history of being used as a slang term for being drunk. While we noted that the phrase had other meanings, because the ad was focused on the creation and consumption of an alcoholic drink, and was set in a bar, we considered that consumers would likely associate the phrase “we’re getting lit tonight” to relate to the excessive consumption of alcohol and becoming intoxicated. We also considered that the comment “We’re going to do four in one” stated Ms Walsh’s intention to drink four cocktails in one video, which further implied the excessive consumption of alcohol.
As the video continued Ms Walsh made a series of cocktails using alcoholic VK products mixed with spirits such as vodka, peach schnapps, amaretto and whiskey liqueur. She did not measure any of the ingredients in the drinks, free pouring the alcohol throughout. We noted that the volume of “mixer”, the non-alcoholic component of a mixed drink, in each cocktail was minimal. We considered that by free pouring the amount of alcohol in each cocktail, the ad depicted alcohol being served irresponsibly. Furthermore, Ms Walsh quickly drank each cocktail after making it, consuming all four drinks in under 90 seconds, which demonstrated that excessive amounts of alcohol had been consumed over a short space of time.
Because the ad encouraged excessive drinking and depicted alcohol being handled and served irresponsibly we concluded that it was irresponsible, and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 18.1 and 18.11 (Alcohol).
2. Upheld
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.
In assessing whether the post was an ad for the purposes of the Code, we noted that while Danielle Walsh said she had not been paid by VK to create the video, VK had confirmed in their response to the ASA that they had provided her with the products free of charge in return for her promotion of their brand, which we considered constituted payment. We also noted that VK had provided Ms Walsh with instructions to create four separate videos, stipulated that the posts should be responsible in nature, and requested to review the videos prior to their publication. We therefore considered that VK had editorial control over the post, despite some of their requests being disregarded by Ms Walsh. Because there was both payment to Ms Walsh and editorial control over the post, we considered that it was an ad for the purposes of the Code.
We then assessed whether the post was obviously identifiable as an ad. We noted that the on-screen images of recipes for the cocktails featured the VK logo, and that the hashtags at the bottom of the post included “VK”. However, the on-screen images were small in size and only briefly visible. In any case, we did not consider that the recipe images made clear that there was a commercial relationship between Ms Walsh and the VK brand. The “VK” hashtag was not visible unless viewers expanded the text at the bottom of the screen. Regardless of its visibility, we did not consider that it was sufficient to indicate to consumers that the post was an ad. While Ms Walsh made regular references to the VK brand throughout the video, she did not make any mention that the post was an ad, and the video contained no other identifiers to her relationship with VK. We therefore concluded that the post was not obviously identifiable as a marketing communication, and did not make clear its commercial intent.
On that point, the ad breached CAP Code (Edition 12) rules 2.1, 2.3 and 2.4 (Recognition of marketing communications).
Action
The ad must not appear again in the form complained of. We told Global Brands Ltd t/a VK and Danielle Walsh to ensure that their future ads did not encourage excessive consumption of alcohol, or feature alcohol being served irresponsibly. We also told VK and Ms Walsh to ensure that future ads were obviously identifiable as such, for example by including a clear and prominent identifier, such as “AD”.
