Ad description
An Instagram post by Whisp Drinks, a hard seltzer retailer, seen on 8 November 2021, featured the claim “Not sure when to crack open a Whisp? With 4% ABV, think of it as the same as drinking a beer - we're for anytime you need a drink. Drink one, and it's a refreshing and relaxing can. Drink loads, and you will get drunk. The only difference - you'll be hungover from a beer, but you won't with Whisp.”
Issue
1. The complainant challenged whether the claim “you'll be hungover from a beer, but you won't with Whisp” was a claim that a food could prevent, treat or cure a disease.
2. The ASA challenged whether the ad was irresponsible, because it implied that alcohol might be indispensable and encouraged excessive drinking.
3. The ASA also challenged whether the comparison with the alcoholic strength of beer breached the Code.
Response
1., 2. & 3. Wild Drinks Group Ltd t/a Whisp Drinks said they had removed the ad but did not provide comments on the issues raised.
Assessment
1. Upheld
The Code prohibited claims that stated or implied a food or drink could prevent, treat or cure human disease.
The ASA considered that a hangover and the symptoms associated with a hangover, such as nausea, dehydration, headache, vomiting and stomach upset, were adverse medical conditions. As such, claims which stated or implied that a food or drink could prevent, treat or cure a hangover were prohibited under this rule. We considered that the claim "you'll be hungover from a beer, but you won't with Whisp” would be understood by consumers to mean that although the product was alcoholic it would not cause a hangover when other alcoholic beverages – specifically beer – would, and Whisp was therefore preferable. We considered the claim therefore implied that the product could prevent a hangover. We concluded, therefore, that the claim breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 15.6.2 15.6.2 Claims that state or imply a food prevents, treats or cures human disease. Reduction-of disease-risk claims are acceptable if authorised on the applicable register. (Food, food supplements and associated health or nutrition claims).
2. Upheld
The CAP Code stated that ads must be socially responsible and must contain nothing that was likely to lead people to adopt styles of drinking that were unwise. For example, they should not encourage excessive drinking. The Code also stated that ads must not imply that alcohol might be indispensable, that drinking alcohol could overcome boredom, loneliness or other problems, or that a drink may be preferred because of its intoxicating effect.
We considered that by presenting alcohol as a “need” in the claim “we’re for anytime you need a drink”, the ad implied that alcohol was indispensable, because it suggested both reliance on alcohol and that alcohol was therapeutic. We considered that readers would generally understand the phrase “need a drink”, when referring to alcohol, to mean that someone felt that an alcoholic drink would help them to relax and recover from problems or a demanding or challenging situation. We similarly considered that the reference to “relaxing” in the claim “Drink one, and it’s a refreshing and relaxing can”, particularly in conjunction with the phrase “need a drink”, suggested that drinking alcohol aided relaxation.
The ad also included the claim “Drink loads, and you will get drunk”. We considered the reference to drinking “loads” encouraged drinking to excess, and that the claim as a whole presented this as a positive, and implied that Whisp’s drink may be preferred because of its intoxicating effect. We also considered the ad also encouraged drinking to excess by stating that Whisp, an alcoholic beverage, would not cause a hangover when drunk to excess.
We further considered that the claims referenced above were presented in a casual tone which implied that excessive drinking and drinking for ‘therapy’ were commonly shared attitudes towards alcohol consumption that should be celebrated and encouraged.
We concluded that the ad was irresponsible because it was likely to lead people to adopt styles of drinking that were unwise, it implied that alcohol might be indispensable and that it could overcome problems, and that Whisp may be preferred because of its intoxicating effect.
On that point, the ad 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.
18.6
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
18.9
18.9
Marketing communications may give factual information about the alcoholic strength of a drink. They may also make a factual alcohol strength comparison with another product, but only when the comparison is with a higher-strength product of a similar beverage.
Marketing communications must not imply that a drink may be preferred because of its alcohol content or intoxicating effect. However, low-alcohol drinks may be presented as preferable because of their low alcoholic strength, provided that the alcohol content of the drink is stated clearly in the marketing communication.
In the case of a drink with relatively high alcoholic strength in relation to its category, the factual information should not be given undue emphasis.
(Alcohol).
3. Upheld
Only nutrition claims authorised on the Great Britain nutrition and health claims register (GB NHC Register) were permitted in ads promoting foods or drinks. The CAP 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 Code further required that the only permitted nutrition claims that could be made in relation to alcohol were ‘low alcohol’, ‘reduced energy’ or ‘reduced alcohol’. Marketing communications may make a factual alcohol strength comparison with another product, but only when the comparison was with a higher-strength product of a similar beverage. We considered that a comparison with a higher-strength product was likely to be understood as a ‘reduced alcohol’ claim, which was one of the nutrition claims that was permitted for alcohol.
The ad stated “With 4% ABV, think of it as the same as drinking a beer”. We considered that claim would be understood by consumers to mean that Whisp drinks had the same, or as much, alcohol by volume as beer. We considered the claim was therefore a nutrition claim for the purposes of the Code. However, it was not one of the three permitted nutrition claims that could be made in relation to alcohol. We further noted that the claim that a food or drink had ‘as much’ of a nutrient as another food or drink was not authorised on the GB NHC Register at all. We concluded the claim “With 4% ABV, think of it as the same as drinking a beer” 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 applicable register. Claims must be presented clearly and without exaggeration.
15.1.1
15.1.1
Only nutrition claims listed in the applicable register may be used in marketing communications.
Only health claims listed as authorised in the applicable register, or claims that would have the same meaning to the consumer, may be used in marketing communications.
(Food, food supplements and associated health or nutrition claims),
18.9
18.9
Marketing communications may give factual information about the alcoholic strength of a drink. They may also make a factual alcohol strength comparison with another product, but only when the comparison is with a higher-strength product of a similar beverage.
Marketing communications must not imply that a drink may be preferred because of its alcohol content or intoxicating effect. However, low-alcohol drinks may be presented as preferable because of their low alcoholic strength, provided that the alcohol content of the drink is stated clearly in the marketing communication.
In the case of a drink with relatively high alcoholic strength in relation to its category, the factual information should not be given undue emphasis.
and
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.
(Alcohol).
Action
The ad must not appear again in the form complained of. We told Wild Drinks Group Ltd t/a Whisp Drinks not to state or imply that their food product could prevent a hangover. We told them to ensure that their ads did not lead people to adopt styles of drinking that were unwise, including by encouraging excessive drinking, or imply that alcohol was indispensable or that it could overcome problems, or that Whisp may be preferred because of its intoxicating effect. We also told them to ensure they did not make nutrition claims that were not permitted in relation to alcohol.
CAP Code (Edition 12)
18.1 18.6 18.9 15.1 15.6 15.1.1 15.6.2
