Round-up of recent ASA cases

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There have been several complaints to the Advertising Standards Authority (ASA) recently involving the food and drink sector.

RR Whiskey Limited

Two adverts for River Rock whisky were posted on social media and the internet on 8 January 2021. The first advert, a post on River Rock’s Facebook page, was headed “Whisky & the Wilderness”. The advert stated: “What better way to celebrate the launch of batch #2 than with a whisky tasting at 3500ft?”. The text was accompanied with images of people mountaineering and a bottle of whisky was shown with the mountaineers. The second advert, a page on the company’s website stated: “What better way to mark the launch of River Rock batch #2 than by summiting 3500 feet for a wild whisky tasting with good friends?”.

A member of the public complained on the grounds that the adverts were irresponsible because they linked alcohol with an activity or location in which drinking would be unsafe.

The ASA upheld the complaint. The CAP Code states that adverts must not link alcohol with activities or locations in which drinking would be unsafe. The CAP Code permits alcohol adverts to feature sporting or physical activities, but states that adverts must not imply those activities were undertaken after the consumption of alcohol. The ASA noted that whilst neither advert showed anyone drinking alcohol, it considered consumers were likely to interpret the images to mean that whisky had been consumed in the mountains. The ASA considered drinking alcohol at altitude would be unsafe and therefore the adverts had breached the CAP Code.

Not Guilty Food Co Limited (trading as The Skinny Food Co)

A Facebook post in June 2020 for The Skinny Food Co featured an image of a man holding four spice mixes. On each of the product labels text stated: “Skinny Spices”, alongside the names of each mix. The post included a caption that stated “Have you checked out our new Skinny Spices?” underneath which a list stated “Natural Ingredients”, “Enhances Flavour”, “Vegan”, “Zero teaspoons of added sugar”.

The advert was the subject of two complaints which challenged whether the claim “Skinny Spices” was subject to Regulation (EC) No. 1924/2006 on nutrition and health claims made on food (the Regulation) and therefore breached the CAP Code.

The ASA upheld the complaints. The ASA noted that according to the Regulation only health claims listed as authorised on the EU Register of Nutrition and Health Claims (the EU Register) were permitted on foods in marketing communications. Health claims were defined as those that stated, suggested or implied a relationship between a food, or ingredient, and health. Advertisers must show that health claims were authorised on the EU Register in relation to the relevant foodstuffs contained in that product and that they complied with the related conditions of use.

The ASA considered that on balance, in the context of food, the claim “Skinny Spices” would be understood by consumers as linked to weight loss, or helping to maintain weight when compared to alternative products, and that consuming products in the Skinny Spices range would therefore have those effects. The claim “Skinny Spices”, in the context of the advert, was therefore a health claim for the purposes of the CAP Code. The ASA therefore concluded that the advert breached the CAP Code.

JST Nutrition Limited

Seven posts appeared on Jodie Marsh’s Instagram account between 28 December 2020 and 11 January 2021 for JST Nutrition Ltd, a food supplement retailer. The posts made various claims about the health giving properties of three food supplements, “tonex”, “neptox” and “hebex”.

The complainant challenged whether the health claims complied with and/or breached the CAP Code and, in addition, the ASA challenged whether the adverts were obviously identifiable as marketing communications.

The ASA ruled that all complaints were upheld. As in the ruling against Skinny Food Co, the ASA noted that according to EC Regulation 1924/2006 on nutrition and health claims made on foods, which was reflected in the CAP Code, only health claims listed as authorised on the EU Register of nutrition and health claims were permitted in marketing communications published on or before 31 December 2020. From 1 January 2021, only health claims authorised on the Great Britain nutrition and health claims register were permitted in marketing communications. It held that the Instagram posts breached CAP Code in that the health claims for “tonex” and “hebex” were not listed on either register.

Finally the CAP Code states 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 noted that the posts did not feature a label such as “#ad” identifying them to consumers as marketing communications and so it was concluded that the posts were not obviously identifiable as marketing communications and as such breached the CAP Code.

WM comment

Note that the complaints were assessed according to the regulations in force at the time that the adverts were posted. Pre-Brexit, health claims in marketing communications needed to be listed as authorised on the EU Register of nutrition and health claims. Any similar complaints would now be adjudged in relation to the Great Britain nutrition and health claims register which came into effect on 31 December 2020.

If you need any help navigating the specifics of the CAP Code please give your usual contact within the Food and Drink team a call and we will put you in touch with one of our experts.