Who: The Advertising Standards Authority (ASA) and BrewDog, Drty Drinks, Long Ashton Holdings t/a High Water, Wild Drinks Group Ltd t/a Whisp Drinks
Where: United Kingdom
When: 7 July 2021
Law stated as at: 19 July 2021
What happened:
The ASA has ruled against hard seltzer brands BrewDog, Drty Drinks, High Water and Whisp in relation to health and nutrition claims made in their advertisements in early July this year.
In arguably the most high-profile ruling, BrewDog was investigated for three separate issues in relation to a paid-for Instagram post about its alcoholic hard-seltzer drink. The post featured a can of Clean & Press Hard Seltzer, with text stating “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY”. Further text below read “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press.”
The first issue was with the claims “only 90 calories per can” and “no carbs or sugar”, both of which the ASA concluded were nutrition claims and in breach of the CAP Code, which defines nutrition claims as any claim that states that a particular food or drink has beneficial health properties. The only permitted nutrition claims in relation to alcohol are “low-alcohol”, “reduced alcohol” and “reduced energy“. Although facts about a product’s contents are permitted, the ASA concluded that “only 90 calories per can” was instead a non-permitted health claim because it implied that the drink had the beneficial nutritional property of being low in calories.
The ASA also objected to the claim “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY”. Although the ASA acknowledged the obviously sarcastic undertone of the statement, it concluded that consumers would infer that Brewdog was alluding to the product being healthy without expressly stating it. Again, as such health claims are not permitted in alcohol advertising, the ad was in breach of the code.
The third issue was with the phrase “a little bit of alcohol“, which the ASA believed consumers were likely to interpret synonymously with “low alcohol“. While this is a permitted nutrition claim in relation to alcohol, according to the UK Food Information Regulations, a drink is only “low alcohol” if it contains no more than 1.2% ABV. Clean & Press contained 5% ABV, so as the product did not meet the definition, the ad was in breach of the Code.
Similarly, the ASA upheld complaints against Wild Drinks Group Ltd for claims made on its hard seltzer brand’s website Whisp. The brand claimed that “Whisp is a refreshing, low-calorie, lightly alcoholic sparkling water – the perfect accomplice to a balanced lifestyle” alongside additional claims including “healthier choice low in sugar, calories and alcohol”. Again, the ASA stated that the brand had breached the code by making general health and nutrition claims and for stating that the drink was low in alcohol, despite being 4% ABV. The ASA also reprimanded Long Ashton Holdings for stating “under 100 calories per can” on the website for its hard seltzer brand High Water, and Drty Drinks for its “#lowcalorie”, “#nosugardiet”, “#zerosugar”, “#keto”, “#ketodiet”, “#carbfree”, and “#nocarbs” claims, which were all construed as non-permitted health or nutrition claims. Additionally, Drty drinks was deemed irresponsible for using images and text which could be perceived as encouraging excessive drinking.
Why this matters:
The rulings are a good reminder of ASA’s firm approach to alcohol advertising and the fact that, for policy reasons, very few health or nutrition claims are available to alcohol brands. In general, the rulings reiterate the current position in relation to health and nutrition claims however the ruling against Long Ashton Holdings in relation to “Under 100 hundred calories per can” suggests that the ASA is clamping down on so-called factual statements in relation to calories on alcohol. It seems that the ASA is taking the position that such statements are only acceptable if they take the form of simply stating the number of calories. Use of the phrase “under [number] calories” is not acceptable.
In addition the ASA has reiterated numerous times in the various rulings that “low alcohol” may not be used on products with more than 1.2% alcohol. While this has been the official position for a long time there has been significant market non-compliance in relation to “low alcohol” and also “alcohol free”. This is a timely reminder that enforcement is possible. The fact that the ASA has chosen to enforce against a number of operators in relation to these claims suggests that they are planning to take a stricter approach in the future. (If you would like to learn more about low and no alcohol claims across Europe, you may be interested to watch our food law video on how to advertise and label non-alcoholic drinks across Europe.)
