Background
Summary of Council decision:
Two issues were investigated, both of which were Not upheld.
Ad description
Two TV ads for Red Bull, seen in October 2017:
a. 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.
b. 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”.
Issue
1. One complainant challenged whether ad (a) implied that drinking Red Bull had a beneficial effect on health, in particular on brain function, which was a health claim which must be authorised on the EU Register of nutrition and health claims made on foods (the EU Register).
2. One complainant challenged the claim “We should have stopped this Red Bull; everyone knows it vitalises body and mind” in ad (b), which was a general health claim which must be accompanied by a specific authorised health claim on the EU Register.
Response
1. & 2. Red Bull Company Ltd said the statement “Red Bull gives you wiiings” was not a health claim so as to require authorisation on the EU Register. They said 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. Furthermore 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.
In addition, 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. They stated Red Bull ads had a consistent cartoon style for the last 20 years and featured the incredible or the impossible, coupled with humour, to tell an entertaining story. The content was not intended to convey a serious message. In ad (a), it was obvious from the beginning that the tone was intended to be comic and the theme far-fetched: a tin-man style robot, playing chess against a human with exaggerated robotic noises and voice. Further, the robot claimed it could calculate 90 trillion moves in advance; there were not 90 trillion moves in chess.
Clearcast stated ad (a) depicted a fantastical scenario that wouldn’t be taken seriously. Although the robot became frustrated with his opponent, who was drinking a can of Red Bull, there was nothing to suggest the opponent consequently won the match due to the drink enhancing his brain function. Therefore they did not believe that the ad contained a health claim. Their comments on ad (b) reflected those of Red Bull.
Assessment
1. Not upheld
The ASA noted according to the Regulation, which was reflected in the BCAP Code, only health claims listed as authorised on the EU Register were permitted in marketing communications for foods. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health.
We noted the ad used a cartoon style and depicted a fantastical situation of a man playing chess against a robot. The man was shown drinking from a can of Red Bull, at which point the robot stated, "Not fair! Not fair!" While we noted this could be understood as a reference to the effect of the drink on the man's chess playing abilities, it was ambiguous and could also be understood as him taking some refreshment during the game. On balance, given the humorous, fantastical tone of the ad and the lack of any overt reference to a health benefit, we considered that consumers were unlikely to understand that the ad implied a relationship between a food, or ingredient, and health. We concluded that the ad did not breach the Code.
We investigated ad (a) under BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
and
13.4.2
13.4.2
Advertisements 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. Advertisements must not give a misleading impression of the nutrition or health benefits of the product as a whole and factual nutrition statements should not imply a nutrition or health claim that cannot be supported. Claims must be presented clearly and without exaggeration
(Food, food supplements and associated health or nutrition claims), but did not find it in breach.
2. Not upheld
Article1(3) of the Regulation required that a trade mark or brand name appearing in the advertising of a food which may be construed as a nutrition or health claim may be used, provided that it was accompanied by a permitted nutrition or authorised health claim in that advertising. Article 28(2) provided for an exemption from that requirement until 19 January 2022, for products bearing trademarks or brand names existing before 1 January 2005.
We considered that “it vitalises body and mind” 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, we noted the phrase had been trademarked prior to 1 January 2005. Therefore, at the time the ad was seen, the claim “it vitalises body and mind” satisfied the exemption in Article 28(2) of the Regulation, meaning that the claim was not required to be accompanied by a specific authorised health claim. For that reason, we concluded that the ad did not breach the Code.
We investigated ad (b) under BCAP Code rules
13.4
13.4
Only nutrition claims listed in the updated Annex of the EU Regulation (as reproduced in the EU Register) are permitted in advertisements.
Only health claims listed as authorised in the EU Register or claims that would have the same meaning for the audience may be used in advertisements:
www.ec.europa.eu/food/food/labellingnutrition/claims/community_register/authorised_health_claims_en.htm.
and
13.4.3
13.4.3
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), but did not find it in breach.
Action
No further action required.
