Background
Summary of Council decision:
Three issues were investigated, two of which were Upheld and one of which was Upheld in part.
Ad description
An Instagram post and TikTok post by Laura Whitmore for The Muff Liquor Company:
a. The Instagram post, seen on 2 July 2022, featured Ms Whitmore drinking four different beverages whilst dancing. The first drink was “Peppermint Tea” and featured Ms Whitmore slowly moving her legs whilst drinking from a mug. Ms Whitmore then drank the other three beverages: “Water”; "Beer”; and “Muff & Tonic”. Whilst drinking each drink in turn, Ms Whitmore’s dancing became increasingly more energetic. Music in the background included the lyrics “I’ll be fucked up if you can’t be right here”. Text on screen stated “#MakemineaMuff”. The caption stated “If drinks were dance moves @muffliquorco #makemineamuff #muffboss #irishowned”.
b. The TikTok post, seen on 2 July 2022, featured the same content as ad (a).
Issue
1. The complainant, who understood that Ms Whitmore was an investor in The Muff Liquor Company, challenged whether the ads were obviously identifiable as marketing communications.
2. The complainant, who believed that Ms Whitmore was popular with under 18s, challenged whether the ads, which featured alcoholic drinks, were appropriately targeted.
3. The ASA challenged whether the ads encouraged irresponsible drinking because they implied that alcohol could enhance confidence and was capable of changing mood.
Response
1., 2. & 3.The Muff Liquor Company said that within 24 hours of being made aware of the complaint, Ms Whitmore was asked to remove the ads. They clarified that Ms Whitmore was not paid for the ads, and confirmed that she was a shareholder of The Muff Liquor Company. They believed that the use of hashtags featured in the captions of the ads, namely “#muffboss” and “#irishowned”, made it clear that Ms Whitmore was an investor. They said that was reinforced by an earlier announcement by Ms Whitmore in which she stated that she had invested in Muff Liquor.
They highlighted that 2.7% of Ms Whitmore’s 1.6 million social media followers were under 18 years of age, and therefore understood that the product had not been inappropriately targeted to under-18s. They further stated that the ads were not intended to encourage irresponsible drinking. They said that Ms Whitmore did not consume an excessive amount of alcohol in the ads, nor did she encourage any type of irresponsible drinking.
They said that, since receiving notification of the complaint, they had agreed with Ms Whitmore that future ads for The Muff Liquor Company would be reviewed by the company before being posted. They also emphasised that after being made aware of the complaint they contacted Drinkaware for advertising advice and registered with CopyClear [an independent pre-vetting service for advertising of alcohol in Ireland]. They said all future ads would be reviewed in conjunction with the advice received by the two bodies.
Ms Whitmore confirmed that she was a shareholder of The Muff Liquor Company. She said that the hashtag “#muffboss” was used to declare her shareholder status. Ms Whitmore believed that “#ad” would not have been a suitable disclaimer because she was not paid by The Muff Liquor Company to post ad (a) or (b).
TikTok said that ad (b) appeared to be branded content but that their branded content disclosure tool had not been used by Ms Whitmore. Had the disclosure tool been engaged, TikTok explained that ad (b) would not have been permitted to be posted organically because the promotion of alcohol was prohibited under their Branded Content Policy. They clarified that engaging the disclosure tool was required by TikTok’s Terms of Service.
Instagram said that they had no comments to share in relation to the investigation.
Assessment
1. 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. CAP guidance also stated that influencer marketing posts should be identifiable as ads without consumers needing prior knowledge of the influencer’s commercial relationships.
The ASA first assessed whether the Instagram and TikTok posts were ads for the purposes of the Code. We acknowledged that they did not form part of marketing contractually required by Ms Whitmore, nor was she paid by The Muff Liquor Company to post the ads. However, we understood that as a shareholder of The Muff Liquor Company, Ms Whitmore had a commercial interest in the continued sale of Muff Liquor products. Because the content of the posts promoted Muff Liquor gin, and thus were directly connected to the supply of goods, we concluded the posts were marketing communications that fell within the ASA's remit. They would therefore need to be obviously identifiable as marketing communications.
We noted that Ms Whitmore had announced that she was a shareholder of The Muff Liquor Company in previous social media posts. As such, we acknowledged that regular followers might have been aware that a commercial relationship existed between The Muff Liquor Company and Ms Whitmore. Regardless, because Ms Whitmore’s profile was visible to the public, any posts she published could appear in search results and those posts could easily be viewed in isolation to her profile and the previous post announcing her shareholder status.
We noted that both ads did not include a clear identifier such as “#ad”, nor did they engage Instagram or TikTok’s proprietary advertising disclosure tools, but instead contained the hashtags “#muffboss” and “#irishowned”.
We noted that both The Muff Liquor Company and Ms Whitmore believed that the inclusion of the hashtags made clear that Ms Whitmore was a shareholder, and therefore, that the ads were obviously identifiable as marketing communications. Firstly, we took the hashtag “#muffboss” into consideration. We understood that “boss” may indicate someone who exercised authority and made decisions in a company. However, we considered that being a boss of a company did not necessarily indicate ownership or commercial intent, and that consumers were unlikely to be familiar with the hashtag or interpret it to mean advertising. Furthermore, we considered the meaning of “#muffboss” was not clear. We noted that in colloquial language “boss” was used to denote a positive sentiment and, in that context, the hashtag “#muffboss” could be understood by some viewers to be an endorsement for the product, rather than a disclosure of a commercial interest in the product.
We then assessed the hashtag “#irishowned”. Whilst we understood that Ms Whitmore was Irish, we considered that detail was not disclosed or highlighted in the ads; therefore, it was unlikely that viewers would attribute the hashtag to Ms Whitmore being a shareholder of the company. We also understood that the product was made in Ireland, using an Irish family recipe, and that, besides Ms Whitmore, other owners of The Muff Liquor Company were Irish. Consequently, consumers may have understood the hashtag as a reference to the Irish heritage and production of the products. In any event, we did not consider that “#irishowned” would make sufficiently clear that the posts were ads.
For those reasons, we concluded that both ads were not obviously identifiable as marketing communications and did not make clear its commercial intent.
The ads breached CAP (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of Marketing Communications).
2. Upheld in part
The CAP Code required that ads for alcoholic drinks or ads that featured or referred to alcoholic drinks must not be directed at people under 18 years of age through the selection of media or the context in which they appeared. It also stated that no medium should be used to advertise alcoholic drinks if more than 25% of its audience was under 18 years of age.
We understood that both ads were posted organically by Ms Whitmore. We did not receive any data regarding the demographics of individuals who had seen the ads. We noted that ad (a) was posted on Instagram and ad (b) was posted on TikTok. Consequently, because the ads were posted on separate social media platforms, it was necessary to assess each ad individually.
First, we examined ad (a) and the likelihood that more than 25% of its audience was under 18 years of age. We noted Ms Whitmore's audience figures provided by The Muff Liquor Company, which stated significantly less than 25% of her followers were under the age of 18. As a non-paid for post on Instagram, we understood that ad (a) would have primarily been seen by Ms Whitmore's followers. We also considered that the post could appear in the "Explore" feed of anyone who had interacted with similar posts or accounts. Given that the number of Ms Whitmore's followers who were under 18 was such a small proportion of her total followers, along with the fact that the "Explore" feed was not the primary way that consumers would see the ad, we considered that it was unlikely that children would be overrepresented in the audience proportion of those who saw the ad in the "Explore" feed. Taking into account the mechanics of Instagram, and the available demographic data, we considered that ad (a) had been appropriately targeted and did not breach the Code.
Next, we assessed ad (b). We did not receive a demographic breakdown for Ms Whitmore’s followers on TikTok. Instead, we took into account the mechanics of TikTok and how content was shared with its users. We noted that the way in which content was disseminated differed from Instagram. Upon opening the Instagram app, users saw their “Feed” page first which consisted predominantly of content from accounts followed by the user. We understood that TikTok’s “For You Page” was the first page users saw after opening the TikTok app and the main way in which its users engaged with content. We further understood that this page was algorithmically driven, and therefore users would see content from accounts that they didn’t follow but was likely to be of interest to them. We noted that Ms Whitmore was the presenter of the television programme Love Island, and we subsequently understood that, according to BARB data, Love Island was the fifth most watched programme by those aged 4 to 15 years old in the second quarter of 2022. Because of that, we understood that the programme was popular among under-18s and, consequently, we considered that a large proportion of individuals who were under-18 with TikTok accounts were likely to interact with content related to Love Island on the platform. Even if those individuals did not follow Ms Whitmore, we considered it was likely that the algorithm would determine Ms Whitmore’s posts to be of interest to them, meaning they would appear in their “For You” page.
Moreover, we noted that TikTok’s advertising policy prohibited ads for alcohol products. Because of that, we understood that the platform did not offer support or dedicated tools to advertisers in accommodating or targeting such ads. As such, we were not satisfied that Ms Whitmore had taken all appropriate steps to restrict or exclude under-18s from seeing the ad. Consequently, we considered that ad (b) would likely have been seen by under-18s who did not follow Ms Whitmore. In the absence of demographic data being provided and in view of the way in which users engaged with TikTok, along with an absence of dedicated targeting tools, we considered that insufficient care had been taken to ensure that ad (b) was not directed at people under 18, and therefore breached the Code.
For those reasons, we concluded that through the selection of media, insufficient care had been taken to ensure that ad (b) was not directed at people under 18, and therefore breached the Code.
On that point, ad (b) breached CAP Code (Edition 12) rule 18.15 18.15 Marketing communications must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age. We also investigated ad (a) under that rule, but did not find it in breach.
3. Upheld
The CAP Code required that marketing communications must be socially responsible and must not suggest that alcohol had therapeutic qualities, was capable of changing mood, or could enhance confidence.
We considered Ms Whitmore’s reaction to each of the four drinks in the ads; two of which were alcoholic beverages, specifically, beer and “Muff and Tonic”. We noted that whilst drinking peppermint tea and water, Ms Whitmore moved her legs slowly. However, we noted that when drinking beer, Ms Whitmore began to behave more energetically, nodding her head and moving from side-to-side. Furthermore, when drinking “Muff and Tonic”, we noted that Ms Whitmore’s behaviour became even more animated, as she held her drink up above her head, thrusted her hips and shook her buttocks whilst moving from side to side. Ms Whitmore then took her hat off, shook her hair and stuck her tongue out. Therefore, we considered that Ms Whitmore appeared to dance more confidently and enthusiastically when drinking the two featured alcoholic beverages. Whilst we acknowledged that the ads were presented in a light-hearted tone, nonetheless we considered that consumers would interpret the ads to mean that drinking alcohol could precipitate a change in an individual’s behaviour and could enhance an individual’s confidence.
We also took the caption “If drinks were dance moves” into consideration. We noted that the muted reaction displayed by Ms Whitmore when consuming the non-alcoholic drinks heavily contrasted with her reaction to the alcoholic drinks. Within the context of the caption, we considered that would likely be interpreted by viewers to mean that alcoholic beverages should be preferred, and that sobriety was boring.
We further noted that lyrics featured in the ad stated “I’ll be fucked up if you can’t be right here”. We understood that the term “fucked up” was well-known colloquially to mean being very drunk. Within the context of the ads, in which alcoholic drinks were featured, we considered that the lyrics would be interpreted as a reference to drinking excessively. Consequently, we considered that the featured song lyrics reinforced that the ads encouraged irresponsible drinking.
For those reasons, we concluded that the ads encouraged irresponsible drinking because they implied that alcohol could enhance confidence and was capable of changing mood.
The ads breached 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. 18.2 18.2 Marketing communications must not claim or imply that alcohol can enhance confidence or popularity. 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).
Action
The ads must not appear in their current form. We told The Muff Liquor Company and Ms Whitmore to ensure that in future their ads were obviously identifiable as marketing communications and made clear their commercial intent upfront, for example, by including a clear and prominent identifier such as “#ad”, at a minimum. We also told The Muff Liquor Company and Ms Whitmore to ensure that ads were appropriately targeted in the future and that they were socially responsible and did not imply that alcohol could enhance confidence or change moods.
