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.
Ad description
The website for WHISP www.whispdrinks.co.uk, for hard seltzer alcoholic drinks, seen on 26 January 2021, featured the claim “Whisp is a refreshing, low calorie, lightly alcoholic sparkling water – the perfect accomplice to a balanced lifestyle”. Below that, further claims included “MILK THISTLE Natural detox hero!” and “HEALTHIER CHOICE Low in sugar, calories and alcohol”.
Issue
The ASA challenged whether the claims:
1. “lightly alcoholic” and “Low in […] alcohol” were not permitted claims for the drinks because the product had an alcoholic strength by volume (ABV) of 4%;
2. “low calorie” and “Low in sugar, calories …” were nutrition claims that were not permitted for alcoholic drinks; and
3. “MILK THISTLE Natural detox hero”, “HEALTHIER CHOICE” and “the perfect accomplice to a balanced lifestyle” were general health claims that were not permitted for alcoholic drinks.
Response
1., 2., & 3. Wild Drinks Group Ltd t/a WHISP responded that they would remove the claims from their website.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”. It also required that nutrition claims could only be used in relation to products that met the conditions of use associated with the nutrition claim.
The ASA considered that the claims “lightly alcoholic” and “Low in […] alcohol” were likely to be understood by consumers to mean that the product was low in alcohol. Low alcohol claims were permitted for alcoholic drinks under the Code. However, the UK Food Information Regulations (2014) stated that the description ‘low alcohol’ (and any other word or description that implied that the drink was low alcohol) should not be applied to any drink of more than 1.2% ABV. We understood that WHISP contained 4% ABV and therefore did not meet that definition.
Because we considered that consumers would understand the claim “lightly alcoholic” and “Low in […] alcohol” to mean that the product was low alcohol, but the product did not meet the definition of low alcohol, we concluded that the claim breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleading advertising),15.1,
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
As referenced at point 1, the CAP Code required that the only permitted nutrition claims that could be made in relation to alcohol were “low-alcohol”, “reduced alcohol” and “reduced energy”. It also required that nutrition claims could only be used in relation to products that met the conditions of use associated with the nutrition claim.
We considered the claims “low calorie” and “Low in sugar, calories …” would be understood by consumers to mean that the drinks had beneficial nutritional properties because they were low in sugar and calories. ‘Low sugars’ and ‘low calorie/energy’ were nutrition claims that could usually be made in relation to foods or drinks which met the associated conditions of use. However, it was not permitted to make a ‘low sugars’ or ‘low calorie/energy’ nutrition claim in relation to alcohol. Because the claims “low calorie” and “Low in sugar, calories …” were nutrition claims that 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
15.1
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).
3. 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 considered that the claim “MILK THISTLE Natural detox hero” was a general health claim because it implied that the milk thistle in the product had general ‘detoxifying’ effects on the body and was therefore beneficial to overall good health. We considered that the claims “HEALTHIER CHOICE” and “the perfect accomplice to a balanced lifestyle” were general health claims, because they also suggested that the drink was beneficial for overall good health or 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).
Action
The ad must not appear again in its current form. We told Wild Drinks Group Ltd t/a WHISP not to make health claims, or non-permitted nutrition claims about alcoholic drinks. We also told them not to make permitted nutrition claims for alcoholic drinks if the product did not meet the associated conditions of use for the claim.
CAP Code (Edition 12)
18.1 18.6 18.7 18.9 18.17 15.1 15.2 15.1.1
