ASA slams social media post for breaching rules on alcohol advertising
How much care do brands and influencers alike need to take when promoting higher risk products like alcohol on social media? And what does this ASA ruling tell us about the appropriate targeting of posted content?
The key takeaway
It goes without saying that combining social media influencers and the promotion of alcohol (or any other sensitive product/service for that matter) is a risky activity, at least unless everyone involved (especially the influencer) has a clear understanding of the relevant rules and what is, and what is not, permissible. Added to this must be clarity over how and when to make an advertising disclosure and who (ie which audience) will see it from a demographic perspective, not least given the need to protect minors.
The background
In July 2022 Laura Whitmore, TV presenter and social media influencer, posted a video to both Instagram and TikTok that featured The Muff Liquor Company (MLC). The video in question (which was removed within 24 hours of being posted) showed Ms Whitmore dancing in a manner which became progressively “more energetic” as her drink changed from non-alcoholic drinks to “Muff and Tonic”. Dancing to a song with the lyrics “I’ll be fu**ed up if you can’t be right here”, the video caption read: “If drinks were dance moves @muffliquorco #makemineamuff #muffboss #irishowned”.
The complainant challenged whether the video was easily identifiable as marketing communication and whether the ad was inappropriately targeted at under 18s. Additionally, the ASA challenged whether or not the ads encouraged responsible drinking, due to the implication that alcohol can enhance confidence and mood.
The ASA ruling
It was noted that the video was clearly intended to be a marketing communication as it was “directly connected to the supply of goods” and promoted MLC alcoholic drinks. As the video did not contain a “#ad” identifier or engage with TikTok and Instagram’s advertising identifier tools, the video was not obviously identifiable as a marketing communication. MLC highlighted that Ms Whitmore was an investor in the company and as such it was clear that the post was marketing content. They also claimed that the inclusion of the hashtags “#muffboss” and “#irishowned” further made it clear that Ms Whitmore was commercially involved with the product. The ASA disagreed, noting that the hashtags were insufficient to identify her status to viewers. Additionally, because Ms Whitmore’s social media accounts were public, the video could be viewed “in isolation” to her previous posts in which she referred to MLC and her involvement with the brand.
The ASA also ruled that the video was not socially responsible in that it suggested that alcohol could change mood or enhance confidence. The ASA concluded that in the video Ms Whitmore danced “more confidently and enthusiastically” when drinking the alcoholic drink, “Muff and Tonic”, compared to when drinking non-alcoholic drinks, implying to consumers that drinking Muff and Tonic would enhance their confidence and improve their mood. The ASA also found that the content and the caption implied that “sobriety was boring”. This was also compounded when combined with the lyrics of the song “I’ll be fu**ed up” which was also deemed to promote excessive alcohol consumption.
Finally, as to whether the ads were inappropriately targeted towards children, the ASA noted that the Instagram video would have been “primarily seen by Ms Whitmore’s followers” with the video pulling through to the “Explore” feed of anyone who had interacted with similar posts. The percentage of users under 18 deemed likely to have seen the video was significantly below the 25% audience share stipulated by the CAP Code (rule 18.15), given that Ms Whitmore’s followers under the age of 18 is such a small proportion of her total followers. The ASA did not have data available about the demographic of Ms Whitmore’s TikTok followers. Instead, they considered TikTok’s interface and algorithm along with Ms Whitmore’s previous role as presenter of Love Island, the “fifth most watched programme by those aged 4 to 15 years old” in the summer of 2022. On this basis, the ASA deemed the video to be directed at people under the age of 18. Contributing to this decision was TikTok’s policy on banning the advertisement of alcohol on the platform. As a result, only the ad as it appeared on TikTok was in breach of the relevant rule (ie rule 18.15) in the CAP Code.
Why is this important?
The ruling highlights several key points around the engagement of social media influencers, especially when they are involved in the promotion of restricted products such as alcohol. It shows that brands need to fully control, and keep a close ongoing watch of, their influencers in this space. This goes to the extent to which the influencer displays a marketing disclosure as well as the actual activities they engage in as part of the promotional activity for the product in question (noting the higher levels of care needed for alcohol and other restricted products/services). An understanding of the demographics of the influencer’s followers is also critical for these types of products – not just where the demographics can be cleanly assessed through follower numbers, but also on those channels where they cannot be where the ASA may look to the influencer’s wider appeal (such as here with Ms Whitmore’s Love Island fame).
Any practical tips?
When featuring any products on social media, influencers must use the hashtag “#ad” if they have any commercial interest in the product, even if they have not received direct payment for the post. The CMA’s guidance: “Hidden ads: Being clear with your audience” and CAP’s guide: “Influencer’s guide to making clear that ads are ads” are both helpful here. And remember that with higher risk products and services, like alcohol and gambling, it’s critical to ensure compliance with the specific advertising rules which govern them. Otherwise, it is almost inevitable that the promotional activity will fall foul of the (critical) eye of the regulators.
Spring 2023