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The ASA bites back – Burger King 'Rebel Whopper' ads ruled to be misleading and in breach of advertising rules

07 May 2020. Published by Ben Mark, Partner and Victoria Noto, Associate

At the start of the year, Veganuary hit the headlines, with the British public challenged to ditch animal by-products in favour of a plant-based diet for the month of January.

More generally, veganism has surged in popularity in recent years: In the UK alone, the number of people who say that they follow a vegan diet has reportedly risen to over a million (an increase of approximately 62% from last year) and in 2019, almost one in four food products launched in the UK was labelled as 'vegan'.

In a recent decision, the UK Employment Tribunal has even recognised that 'ethical veganism' may (in some circumstances) amount to a philosophical belief, which constitutes a 'protected characteristic' under the Equality Act 2010.  It is therefore no surprise that food and drink businesses across the UK have increasingly sought to cater for this growing market.

One name that would not traditionally be associated with veganism is Burger King. But in January 2020, Burger King dipped its toe in the vegan market and launched the 'Rebel Whopper'.

Advertising for the product:

  • described the Rebel Whopper as Burger King's "first plant-based burger";
  • stated that the Rebel Whopper was "100% whopper. No Beef"; and
  • said that it was "Powered by the vegetarian butcher".

In addition, the Burger King logo was positioned alongside the 'Vegetarian Butcher' logo (which supplied the burgers) in various promotional materials.

The issue? Unfortunately for eager vegans wanting to try the new burger, the Rebel Whopper was cooked alongside meat products and was served with an egg-based mayonnaise. This prompted ten complaints to the Advertising Standards Authority (ASA) that the burger's advertising had misleadingly given the impression that it was vegan and vegetarian friendly, when in fact, this was not the case.

The Ruling

The complaints were upheld by the ASA (the full ruling can be viewed here). Burger King had included a disclaimer in the small print of various adverts, which explained that the Rebel Whopper was cooked alongside meat products. However, the ASA considered that the wording was not sufficiently prominent to displace the overall impression that the burger was vegan / vegetarian friendly. The ASA also ruled that the statements (above), the presence of the 'Vegetarian Butcher' logo, the adverts' green colour palette and the fact that the Rebel Whopper had been released to coincide with Veganuary had the cumulative effect of suggesting that it did not contain any beef or other animal by-products. The ads were therefore considered misleading and in breach of rules 3.1 and 3.3 of the CAP Code. As such, the ASA ruled that the ads "must not appear again in their current form".

Comment

As the number of people adhering to specific diets (whether vegan, organic, gluten free or otherwise) continues to rise, the correlating increase in the options offered by food and drinks businesses to cater for those preferences will be welcomed by consumers. However, it is important that businesses ensure that their manufacturing and cooking processes meet applicable conditions before describing their products as suitable for a particular diet. Many dietary terms have specific industry and legal meanings – for example, there are strict rules around describing a product as organic. Where such rules apply, brands should ensure compliance to avoid complaints and/or reputational issues.

Products that are tailored towards specific dietary requirements also often command a premium price. In the case of Burger King's Rebel Whopper, it was reportedly priced at £6.99, compared with £6.49 for the traditional Whopper. This, combined with the clear health and ethical consequences of mislabelling products, will likely mean that the ASA continues to take a robust approach to the regulation of advertisements, which state that food and/or drink products are suitable for a certain diet.