Background
The ad under investigation appeared in January 2021, and we therefore assessed it under the Code interpreted in the light of changes in the background law resulting from the UK’s exit from the EU, as per CAP/BCAP’s statement on EU exit dated 22 December 2020.
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
High-Water’s website www.drinkhighwater.com, seen in January 2021, included on its “About” page an image of people on a beach and the text “HARD SELTZERS FOR THOSE WITH A THIRST FOR LIFE. For the sun risers, the sun setters, for those who drink up every drop that life has to offer. For those who know how to let go and enjoy the moment without compromising their dreams for tomorrow. For those who love catching up with friends without undoing all the good from their active lifestyle. For those for whom there is play in everyday”. Further text stated “DELICIOUS, REFRESHING TASTING AND UNDER 100 CALORIES PER CAN – A DREAM HAS JUST BECOME A REALITY”.
Issue
The ASA challenged whether the claims:
1. “UNDER 100 CALORIES PER CAN” was a nutrition claim that was not permitted for alcoholic drinks;
2. “For those who love catching up with friends without undoing all the good from their active lifestyle” was a general health claim that was not permitted for alcoholic drinks; and
3. “For those with a thirst for life”, “For the sun risers, the sun setters, for those who drink up every drop that life has to offer”, “For those who know how to let go and enjoy the moment” were irresponsible because they implied that alcohol had therapeutic qualities or was indispensable.
Response
1. Long Ashton Holdings Ltd t/a High Water responded that they considered that “UNDER 100 CALORIES PER CAN” was factual information about the drink and would not be interpreted by consumers as a reduced energy nutrition claim. They said that, although they disagreed that the presence of the word “under” made the claim a nutrition claim, they would remove “under” and replace it with “ranges from 93 to 99 calories per can”, and when referring to separate variants in the range, they would refer to “with [x] calories per can”.
2. They stated that they did not agree that the claim “For those who love catching up with friends without undoing all the good from their active lifestyle” was a general health claim. They said that the use of the sentence was designed to bring to mind some of the types of consumer who might be interested in purchasing and consuming the product. They said the reference to “without undoing all the good from their active lifestyle” was designed to engage consumers to look at the calorie content of the product because the calories in the drink were lower than a comparable alcoholic drink.
3. High Water responded that there was no suggestion that the claims implied that alcohol had therapeutic qualities or was indispensable. They said that the claims were designed to describe some of the types of consumers who may wish to try High Water and that there was no link to the drink itself bringing about any form of change to those who chose to drink it.
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 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. However, the ASA considered that by preceding that statement with the word “under”, the ad suggested that the drink had the particular beneficial nutritional property of being low in calories (i.e. energy). The claim “under 100 calories” 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
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 High Water’s point that the claim “For those who love catching up with friends without undoing all the good from their active lifestyle” was intended to direct consumers to consider calorie information on the drink. However, we considered that in the context of the ad it suggested that the drink would have less impact on their overall health compared to other alcoholic drinks, and was therefore a claim that the drink had benefits for overall 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) 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).
3. Not upheld
The CAP Code required that marketing communications must be socially responsible and must contain nothing that was likely to lead people to adopt styles of drinking that were unwise. The CAP Code further required that marketing communications must not imply that alcohol might be indispensable or take priority in life, or imply that alcohol had therapeutic qualities.
We considered that the claims “For those with a thirst for life”, “For the sun risers, the sun setters, for those who drink up every drop that life has to offer”, “For those who know how to let go and enjoy the moment” would be interpreted by consumers to mean positive qualities of people who may enjoy the drink. We considered that the claims did not imply that the drink was necessary for the enjoyment of life, or for living an aspirational life and was therefore indispensable, or that it had therapeutic qualities. We therefore concluded that the claims did not breach the Code.
On that point we investigated the ad under 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. 18.6 18.6 Marketing communications must not imply that alcohol might be indispensable or take priority in life or that drinking alcohol can overcome boredom, loneliness or other problems. and 18.7 18.7 Marketing communications must not imply that alcohol has therapeutic qualities. Alcohol must not be portrayed as capable of changing mood, physical condition or behaviour or as a source of nourishment. Marketing communications must not imply that alcohol can enhance mental or physical capabilities; for example, by contributing to professional or sporting achievements. (Alcohol), but did not find it in breach.
Action
The ad must not appear again in its current form. We told Long Ashton Holdings Ltd t/a High Water not to not to make health claims, or non-permitted nutrition claims, about alcoholic drinks.
CAP Code (Edition 12)
18.1 18.6 18.7 18.17 15.1 15.2 15.1.1
