Ad description
A poster for Red Bull, seen on 11 September 2018 on the London Underground network, featured a cartoon of two women smiling and whistling in front of a can of Red Bull. Text next to the cartoon stated “THE SECRET TO FINISHING EARLY. Plans are afoot to finish at four, But first, you have meetings and deadlines galore. So remember the secret of every office superstar, And tame every task that’s thrown on your radar. Because to leap every hurdle a hectic day brings, You just need to know: RED BULL GIVES YOU WIIINGS.” Beneath this a cartoon depicted a clock at the 4 pm mark pulling a flag that stated “FOR A FLYING 4PM FINISH ON 14TH SEPTEMBER VISIT REDBULL.CO.UK/4PMFINISH”. Following the flag were several items of stationery.
Issue
The complainant challenged whether the ad implied Red Bull had a beneficial effect on health, in particular focus and concentration, which was a health claim which must comply with the Code.
Response
Red Bull Company Ltd t/a Red Bull said the ad promoted a consumer initiative, the 4PM Finish, which encouraged workers to leave one hour early on Friday 14 September. They said such initiatives were evidence of Red Bull's humorous brand ethos. It was not to suggest, either directly or implicitly, that consumption of Red Bull would help achieve certain goals. They said they had produced a range of general tips and guidance from life coaches, professionals and others on how to manage time as part of the initiative.
Red Bull said the ad’s imagery did not include a depiction of their product being consumed or even show the product in a state capable of being consumed. They said the two cartoon women in the ad were both standing on the ground and facing away from the can of Red Bull floating behind them. They said the women were not shown consuming or having consumed the product and no reasonable interpretation could be made that they had done so, or that they had received a specific health benefit having done so.
Red Bull said the text did not suggest their drink delivered a health benefit, made people better at doing their job through increased concentration or focus, or had any health benefit at all. They said the ad called for people to be efficient and complete their work faster to be able to leave early, which was not a health benefit. They said the only reference in the text to Red Bull was to their well-known slogan “Red Bull gives you wiiings” which they considered was a whimsical, humorous and fantastical suggestion that did not suggest a health benefit.
Red Bull considered the ad was similar to a previous case in which the ASA had concluded Red Bull had not made a health claim. They said that even if the ASA were to conclude that “Red Bull gives you wiiings” was a health claim, it would not be in breach of any regulation or advertising standard because the term was a trademark subject to an exemption in Article 28(2) of Regulation (EC) 1924/2006 on nutrition and health claims made on foods (the Regulation) and was permitted to be used until January 2022.
Assessment
Upheld
According to the Regulation, which was reflected in the CAP 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.
The ad used a cartoon style and depicted two women smiling, one of them whistling, as they stood in front of a can of Red Bull. That was accompanied by text that stated “The Secret to Finishing Early. Plans are afoot to finish at four, But first you have meetings and deadlines galore. So remember the secret of every office superstar, And tame every task that’s thrown on your radar. Because to leap every hurdle a hectic day brings, You just need to know: RED BULL GIVES YOU WIIINGS.” Beneath that a banner stated “FOR A FLYING 4PM FINISH ON 14TH SEPTEMBER VISIT REDBULL.CO.UK/4PMFINISH”.
The ASA considered that while the ad’s tone was light-hearted, the scenario it presented of being overwhelmed or busy at work was one that would be familiar and relatable to consumers. While we understood that the ad was intended to be part of a marketing initiative aimed at encouraging consumers to improve their productivity and leave at 4 pm on a specific day, we considered that the penultimate line of the poem, “… to leap every hurdle a hectic day brings” implied that Red Bull could help improve consumers’ mental focus, concentration and energy levels (and therefore increase productivity).
We accepted that because the claim “Red Bull gives you wiiings” was trademarked before 1 January 2005, if construed as a health claim, it did not have to be accompanied by an authorised health claim as generally required by the Regulation. However, that exemption did not protect the use of other specific or implied health claims made about Red Bull in the ad. We considered the picture of the can, the artwork and the text made clear the ad was for Red Bull and that any implied health claims in the ad were in respect of that product.
For those reasons we therefore considered that consumers would understand that the ad implied a relationship between a food and health, specifically that Red Bull could help increase mental focus, concentration and energy levels. Because those were not claims authorised on the EU Register we concluded that the ad breached the Code.
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.
and
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).
Action
The ad must not appear again in its current form. We told Red Bull Company Ltd t/a Red Bull not to imply that Red Bull could increase focus and concentration when those claims were not authorised on the EU Register.
