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ASA ruling round up - 16 August 2023

16 August 2023

The DWF consumer regulatory team take you through the key lessons from the last fortnight.

Be Ad Code aware when promoting alcohol

The rules on broadcast advertising alcohol prohibit encouraging irresponsible consumption whether that by amount, location or the reason the alcohol is being consumed. This means that, amongst other things, ads shouldn't imply alcohol can change mood, is the reason for the success of a social event, imply drinking alcohol can overcome problems or has therapeutic qualities. The list is extensive, and available in Section 19 of the Broadcast Advertising Code.

The assessment of whether an ad is complaint with these rules can be subjective and often subtle, but key things to watch out for is whether introduction of alcohol changes what is happening in an ad. If the party is in full swing before the alcohol arrives, it's less likely the ASA will consider that the ad is implying the alcohol was the reason for the success of the event. A TV ad for gin which included the strapline "Why must the everyday, be so everyday?", "add a dash of fabulous" and "let's live magnificently" was not found to breach the rules because although the ad suggested alcohol was being introduced to the social events depicted, all those who were depicted in groups were socialising and smiling before alcohol was introduced into the scene and there was no indication their mood was changed, (Diageo Great Britain Ltd 16 August 2023).

In contrast a rum ad which stated “Pirates drink because it’s hard to find a reliable therapist on the open seas, and rum is cheaper than a shipful of parrots with good listening skills” was ruled irresponsible because despite the intention to make a light hearted joke it presented alcohol as a solution to problems in life, (Pirate's Grog Rum Ltd 9 August 2023).

Regardless of medium, alcohol ads must not be targeted at under 18s. TV advertisements for alcohol must not strongly appeal to people under 18 and video-on-demand (VOD) ads must not be likely to be of particular appeal to them. Appeal to under 18s can mean a lot of different things, in this case the TV and VOD featured animated beavers and triggered three complaints. Whilst it's easy to imagine a portrayal of a cartoon animal would appeal to younger people, this wasn't the style of the depiction in the ads. The ASA considered that the overall tone and aesthetic of the ad was predominantly realistic, (Whyte and Mackay Ltd 16 August 2023).

Retweeting makes you responsible

Since October 2022 there has been a specific rule that people (or characters) with strong appeal to under 18s cannot be featured in gambling advertising. When a gambling advertiser retweeted a sporting channel's tweet about a footballer, it adopted and incorporated the content and caused the gambling rules to apply. In this instance it was Granit Xhaka whose appeal to under 18s came under scrutiny. The advertiser noted that he didn’t have a public profile on the platform previously known as Twitter, and only 0.4% of his followers were under 18 on Instagram, albeit that 32.3% were registered under 18 on TikTok. However, the ASA  pointed to the CAP position that footballers who play at an elite level for top clubs are likely to strongly appeal to under 18s. At the time of the ad Xhaka played for Arsenal and was captain of the Swiss national team so the ASA ruled the ad in breach, (Hillside (UK Sports) ENC 16 August 2023).

Ensure advertising is obviously identifiable as such

A tweet from Ozzy Osbourne's Twitter account said “Did this spot with @Playstation team. We had a lot of fun. Their new VR2 is really amazing”. It's not explicitly in the ruling, but apparently there was a careful discussion regarding whether or not the average consumer would understand the word "spot" as meaning "ad" before the ASA concluded that the wording wasn't sufficient to clearly indicate to consumers that the tweet was part of a commercial relationship between Sony and Ozzy Osbourne and that the tweet was therefore an ad. The indicators within the video came too late, because in line with its precedent the ASA considered that it needed to be obviously identifiable as an ad so there needed to be clear and upfront identifiers, (Sony Interactive Entertainment Europe 9 August 2023).

Hold substantiation for all claims

Claims must not mislead and in order to show a claim isn't misleading advertisers need to hold evidence that it is true. This principle covers every sector and any claim you can think of. This fortnight's examples include referring to, and making claims for:

How to mitigate these risks

  • Ensure the arrival of the alcohol isn't linked to a positive impact
  • Prepare your rationale for including a celebrity in a gambling ad
  • To avoid a challenge, put #ad at the front of the post 
  • Call your friendly neighbourhood advertising and consumer products lawyer to get help with all of the above


Please contact our authors Katharine Mason or Dominic Watkins if you have any queries or would need legal advice.

Further Reading