December ASA Rulings Recap
Will 2020 be the end of Influencer Marketing?
23rd December 2019
Nestlé in hot water with the ASA over Nescafé promotion
10th January 2020
This month Amy Powell, our Compliance Manager, looks at a huge hit to vaping companies and restrictions to their advertising options as well as the implication of swear words in marketing communications. She takes a look at the latest alcohol marketing rulings and misleading countdown clocks too.
Vaping Companies Hit with Rulings
Four vaping companies were investigated by the ASA for posting (or asking influencers to post) content on instagram that featured e-cigarettes containing nicotine which is a breach the CAP Code and unlawful according to The Tobacco and Related Products Regulations 2016. The Instagram posts under investigation included popular hashtags, and promotional messaging, and the ASA concluded that they were likely to be seen by a wide audience due to the influencers, some of whom were or appeared to be under 25.
On the same subject, in Italy two e-cigarette companies have been banned from almost all commercial communications as an urgent measure. Advertising can only be in publications designed for professionals in the industry and those publications intended for outside the EU market.
Our view: For the first time, Instagram and Facebook are banning influencers from promoting vaping and tobacco products. Instagram announced that it will no longer allows “branded content” that promotes either goods on the platform.
BrewDog, Channel Four & KFC Used a Naughty Word
The ASA received 26 complaints about a BrewDog advert which included the phrases “SOBER AS A MOTHERFU” and “PUNK AF” next to an image of their beer. The complainants challenged whether the ad was likely to cause widespread offence and whether the ad was inappropriately placed in a medium which could be seen by children. 
BrewDog’s response? “Given it contained no profanity, it would not cause serious or widespread offence and was not inappropriate for display” as the ad was for an alcohol-free product. Guess what…the ASA disagreed and upheld both aspects of the complaints.
Channel Four also received a ruling citing the same two sections of the code for an advert placed outside of the Excel Centre featuring the text “THE END OF THE F*****G WORLD” and the channel’s logo.
KFC’s slogan “What the Cluuuuuuck” seen on bus stops and in The Metro & The Sun was complained about numerous times because the word “cluck” was clearly substituting an offensive word. The ASA’s response was:
“The ASA understood that the use of the word “cluck” was a reference to the sound a chicken made and that that was relevant to the product being advertised. We recognised that there were several variations of the “what the…” expression, all commonly used to denote surprise or outrage, and we considered people would interpret that as alluding specifically to the [well known] expression.”
Our View: The ASA themselves struggle to admit that there is any room for humour in British advertising anymore. Regardless of the tone or context, if the content of an advert is likely to offend then the ASA are likely to rule against it and brands needs to be very careful when adopting marketing practices that are close to the line or “tongue in cheek”.
Black Rose Breach Alcohol Marketing Rules
The company which owns a number of pubs placed three separate social media posts which breached the code’s alcohol marketing rules in a number of ways.
- An ad stated “Do you suffer from shyness? Ask your bartender about our Fizz Friday Prosecco offer!” breached the rule which prohibits implying that alcohol can enhance confidence.
- A second ad stated “Hats off to everyone going sober for October…I’m going on a bender ‘til December” breached the rule which bans encouraging excessive drinking.
- A third ad stated “If at first you don’t succeed, try drinking a bottle of prosecco, you’ll be surprised at how much less you’ll care” breached the code in two areas – for encouraging excessive drinking and implying that alcohol had mood altering capabilities.
Our View: Relatable and (possibly!) relatively accurate for some! Nonetheless…humour in alcohol marketing won’t get you anywhere if the suggestions within them breach the principles of the code which prohibit reckless behaviour (amongst other rules).
Wowcher Countdown Deemed Misleading
The complainant who purchased a mattress within a limited period then discovered that once the countdown clock reached zero, it resent for a further four days at the same price of £279. The ad was deemed misleading because after the countdown the price of the product didn’t return to the “was” price of £399 (as stated in the artwork and copy) which would have been expected by the consumer.
The ASA ruled that the ad mustn’t appear again in its current form and they must ensure their future advertising didn’t misleadingly imply that discount offers were time-limited.
Our View: making false claims about limited-time only offers which force consumers to make an urgent purchase are always going to be uncompliant. Not only are they a breach of the CAP Code, but also CPR which the Competition & Markets Authority can enforce with the possibility of hefty fines.