Background
Summary of Council decision:
Three issues were investigated, of which one was Upheld and two were Not upheld.
Ad description
A YouTube video on the Sidemen’s YouTube channel, seen on 8 October 2023. The video was titled “KSI & W2S CONTROL THE SIDEMEN FOR THE DAY”. The video featured the Sidemen doing challenges around London in two teams. At approximately 16 minutes into the video, a title card quickly appeared that repeated the words “SIDEMEN” and “XIX” with blue arrows. The voice-over then said, “Right, guys, it’s drop time. We are dropping the 1.5 litre beautiful bottles of original XIX vodka.” At the same time, bottles of vodka appeared on the screen and the camera zoomed in and out on the bottle in the middle of the screen. On-screen text stated “XIX VODKA. JUST BIGGER” and “THIS IS THE MAGGY”.
The voice-over continued, “That’s right, we’re dropping the maggy [sic].” The voice-over further stated, “Look at that bottle! That’s going to bang in a club. Imagine, having that on display at home.” On-screen text stated, “HOW MUCH?” The voiceover stated, “That’s right, £69.99. Get yourself over to XIXVodka.com for more details.” The title card then appeared at the end of the segment, before cutting back to the main video.
Text in the video description underneath the video stated, “Head here to get your maggy” and contained a link to the XIX Vodka website.
Issue
The complainant, who believed the Sidemen were popular with under-18s, challenged whether the ad:
1. was likely to appeal particularly to people aged under 18; and
2. had been directed at under-18s.The ASA challenged whether the ad:
3. was obviously identifiable as marketing communications.
Response
1. & 2. Sidemen Entertainment Ltd t/a Sidemen provided a joint response on behalf of themselves and XIX Vodka Ltd. The Sidemen said they produced content primarily for, and directed at, those who were aged over 18 years and that their video content was adult in nature.
The Sidemen provided a breakdown of their audience demographic data. It showed that over 93% of their audience were registered as being over the age of 18, and that the majority of their YouTube subscribers were aged between 18 and 24. They also provided the audience demographic data for the complained about video, which showed 94% were aged over 18. They believed that showed the video in which the ad appeared was not directed at under-18s.
They highlighted that the video was marked as “not made for kids”, which was a setting on YouTube which stopped such content from being recommended by the YouTube algorithm to those registered as under-18.
They acknowledged that one of the members of the Sidemen was seen wearing a Harry Potter outfit in the video. However, they believed that the Harry Potter franchise, whilst it was well known amongst all age groups, including those under 18, was not associated with youth culture, nor did it appeal particularly to under-18s. They also highlighted that the video contained content that was clearly aimed at an adult audience, including showing the Sidemen visiting adult stores, and dressing up in bondage outfits.
3. The Sidemen said the complained about ad was segmented from the rest of the video by a break, before returning to the main video, which was similar to how ads appeared on TV or were integrated into other YouTube videos. They highlighted that a banner first appeared which separated it from the main video content, and that the words “XIX” and “SIDEMEN” appeared together, which they said were brand names and registered trademarks of the Sidemen and so they believed it was clear from the context that XIX Vodka was associated with the Sidemen.
They also highlighted that the banner appeared at the end of the ad segment before returning to the main video.They stated that the ad was in a different style and context to the rest of the video content as it was in black and white, and that the ad focused only on the product being promoted.
The Sidemen said the ad used language to describe the characteristics of the product, such as the size and price, and that the claim “we’re dropping the maggy” indicated it was an ad and that it was a product associated with the Sidemen.
However, they said they had removed the ad in its entirety from the video and wanted to work cooperatively with the ASA.Google said the ad and video were uploaded to the Sidemen’s YouTube channel and was not served through Google Ads. As such, and as per the terms agreed to by YouTube users, they said that it was the user’s responsibility to abide by applicable laws and regulations, including the CAP Code.
Assessment
1. Not upheld
The CAP Code required that alcohol ads must not be likely to appeal particularly to people under 18, especially by reflecting or being associated with youth culture. They should not feature or portray real or fictitious characters who were likely to appeal particularly to people under 18 in a way that might encourage the young to drink. Alcohol ads must therefore not appeal more to under-18s than it would to over-18s, regardless of whether it was appropriately targeted.
The ASA acknowledged that viewers would likely recognise KSI as the voice-over in the ad, including viewers who were under 18. Furthermore, because KSI was primarily known for making YouTube videos, we considered that he could appeal to some under-18s. However, we noted that KSI only featured in the ad as a voice-over, which was serious in tone, and was not shown engaging in any activity in the ad that would particularly appeal to under-18s. Furthermore, the ad was shot entirely in black and white, and depicted the product in a realistic way, which we considered would not appeal particularly to those under 18. In addition, we noted that the ads did not feature any other elements that were likely to particularly appeal to children, such as cartoonish characters or writing.
For those reasons, we concluded that while the ad could have some appeal to people aged under 18, it was unlikely to appeal particularly to them.On that point, we investigated the ad under CAP Code (Edition 12) rule 18.14 (Alcohol), but did not find it in breach.
2. Not upheld
The CAP Code stated that alcohol ads must not be directed at those aged below 18 years through the selection of media or context in which they appeared. For organic marketing communications for alcohol, published by marketers themselves in their own online spaces, the ASA required the marketer to demonstrate that under 18s were not likely to comprise 25% of the audience total.
The YouTube viewing demographics data supplied by the Sidemen showed that 93% of subscribers to their YouTube channel were registered as being over the age of 18. For the video in which the ad appeared, over 94% of viewers were registered as being over the age of 18. We also considered that, because the ages of the Sidemen’s subscribers and those who had watched the video were very similar, and although the figures only related to users who were logged in, it was likely that those figures reflected the audience as a whole. Furthermore, we understood the video had been marked as “Not Made for Kids” on YouTube. This made the video less likely to be recommended by the YouTube algorithm alongside other videos which were labelled as content for children. We considered this further limited the number of under-18s that would see the video.
We then considered the context in which the ad was seen, specifically, the content of the video in which the ad appeared. The video showed the Sidemen carrying out challenges around London; they were also shown creating and wearing fancy dress outfits, which included a Harry Potter outfit. We considered that, whilst Harry Potter would likely be of interest to some under-18s, we considered that the franchise was also widely recognised among those aged over 18. We also considered that the other outfits worn by the rest of the Sidemen in the video were adult in nature, including one dressed in a gimp mask, and as such, we did not consider the themes highlighted in the video were aimed at children to the extent that the ad was directed at under-18s by its inclusion in the video.
Because the figures provided by the Sidemen showed that significantly fewer than 25% of the audience were under the age of 18 across both the video and their YouTube channel itself, and taking into account the wider context of the video, the content of which was not aimed at under-18s, we considered the ad was not directed at under-18s through the selection of media. We therefore concluded the ad did not breach the Code.
On that point, we investigated the ad under CAP Code (Edition 12) rule 18.15 (Alcohol), but did not find it in breach.
3. 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.
The ASA first assessed whether the ad was a marketing communication for the purposes of the Code. We understood that XIX Vodka was a product that the Sidemen had produced, and the caption contained a link to the XIX Vodka website. We acknowledged that at the time the ad appeared, the link took users to a website where the product could not currently be bought. However, the website allowed users to input their email address in order to be notified when the product was available to purchase and to enter a draw to buy a bottle of XIX Vodka. Because the post was in non-paid for space under the Sidemen’s control, and because it was intended to promote their vodka brand, we therefore concluded it was an ad for the purposes of the Code.
The ad was separated from the video with a title card featuring the words “SIDEMEN” and “XIX” next to each other. We noted the title card was only visible for a short period of time. We therefore considered it was not obvious the ad was distinct from the main video, and the use of the words “SIDEMEN” and “XIX” in the title card did not indicate sufficiently clearly to viewers, in the context of the way it was displayed in the video, that there was a commercial relationship between the Sidemen and XIX Vodka. We acknowledged the voice-over stated, “We are dropping the 1.5 litre beautiful bottles of original XIX Vodka” and “[W]e’re dropping the maggy [sic]”. Whilst we considered that some of the Sidemen’s followers would be aware that XIX Vodka was their own brand, it was not immediately clear from the ad that they were promoting their own commercial venture. There was also nothing in the content, either in the video itself, or in the caption, such as “#ad” placed upfront to indicate to viewers it was a marketing communication.
We welcomed the Sidemen’s assurance that the ad had been removed from the video. However, because at the time the ad was seen it did not make sufficiently clear that it was an ad for the Sidemen’s own brand of vodka, we concluded it was not obviously identifiable as marketing communications, and did not make clear its commercial intent, and therefore breached the Code.On that point, the ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
Action
The ad must not appear again in the form complained of. We told XIX Vodka Ltd and Sidemen Entertainment Ltd t/a the Sidemen to ensure that their ads were obviously identifiable as such, for example by including a clear and prominent identifier, such as “ad”.
CAP Code (Edition 12)
2.1 2.3 18.14 18.15 1.3 4.1 22.8
