BrewDog finds itself in the dog house again, this time it is joined by several competitors (DRTY DRINKS, High Water, and Whisp Drinks).

In BrewDog's case, an ad for its seltzer product, Clean & Press Hard Seltzer, appeared in a paid-for Instragram post in January. Next to an image of the can, it claimed “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY”. Text below the image stated “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press.” 

Issues

1. The ASA challenged whether the claims “only 90 calories per can” and “no carbs or sugar” were nutrition claims that were not permitted for alcoholic drinks.
2. Five complainants challenged whether the claims “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY” and “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press” implied that the drink was healthy and were therefore general health claims that were not permitted for alcoholic drinks.
3. The ASA also challenged whether the claim “a little bit of alcohol” implied that the drink was low alcohol, which was not a permitted claim for the drink because it had an alcoholic strength by volume (ABV) of 5%.

Response

BrewDog didn't seem surprised by the challenge. They responded that, although the claims in the ad were intended to be tongue in cheek, they accepted that they breached the Code and agreed that they would not be used in future campaigns. Could this be an example of BrewDog proceeding with a claim they knew was likely to breach the rules and perhaps concluding that the benefits of proceeding outweighed the risks?

Outcome

The ASA upheld all of the complaints.

The full ruling can be found here.  In a nutshell:

On point 1only permitted nutrition claims that could be made in relation to alcohol were “low-alcohol”, “reduced alcohol” and “reduced energy”.

: From 1 January 2021, only nutrition claims authorised on the Great Britain nutrition and health claims (NHC) register were permitted in marketing communications. The Code defined a nutrition claim as any claim which stated, suggested or implied that a food (or drink) had particular beneficial nutritional properties due to the amount of calories, nutrients or other substances it contained, did not contain, or contained in reduced or increased proportions. The CAP Code further required that the

The ASA considered the claim “no carbs or sugar” suggested that the product had particular beneficial nutritional properties because it did not contain carbohydrates or sugar. The ad therefore included a nutrition claim that the product did not contain carbohydrates, which, in addition to not being permitted to be made in relation to alcohol, was not permitted to be made in relation to any food or drink product. The nutrition claim ‘sugars-free’ could be made in relation to foods or drinks which met the associated conditions of use for the claim, but it was not a nutrition claim that was permitted to be made in relation to alcohol.

“90 calories per can” was permissible, however the ASA considered that by preceding that statement with the word “only”, the ad suggested that the drink had the particular beneficial nutritional property of being low in calories (i.e. energy) and therefore was in breach of the rules around nutrition claims. The ad breached CAP Code rules 15.1, 15.1.1 (Food, food supplements and associated health or nutrition claims) and 18.17 (Alcohol).

On point 2:

In relation to the claims “DUE TO ADVERTISING REGULATIONS WE CANNOT CLAIM THIS DRINK IS HEALTHY” and “Even though Clean & Press is only 90 calories per can, with no carbs or sugar and a little bit of alcohol, this is not a health drink. If you are looking for a health drink, do not drink Clean & Press”, the ASA acknowledged that this presented information in a tongue-in-cheek manner. However, the ASA considered that consumers would understand from the ad that the advertiser was intending to communicate that the product was in fact healthy, but that they were not permitted to inform consumers of that fact. The ad therefore implied that the drink was beneficial to overall good health or health-related well-being, and was therefore also in breach on this basis. Health claims are not permitted for alcoholic drinks. On this point, the ad breached CAP Code rules 15.2 (Food, food supplements and associated health or nutrition claims) 18.17 (Alcohol).

On point 3

:  The ASA considered that the claim “a little bit of alcohol” was likely to be understood by consumers to mean that the product was low in alcohol. "Low alcohol" claims are permitted for certain alcoholic drinks which don't have more than 1.2% ABV. This rule comes from the UK Food Information Regulations (2014) and reflected in the CAP Code. As Clean & Press contains 5% ABV and therefore did not meet that definition, the ASA considered that the claim "a little bit of alcohol" was equivalent to a "low alcohol" claim and was therefore misleading in relation to this product.  On that point, the ad breached CAP Code rules 3.1 (Misleading advertising), 15.1, 15.1.1 (Food, food supplements and associated health or nutrition claims) and 18.17 (Alcohol).

Observations

It’s important when promoting any kind of food or drink that brands do not fall foul of the rules around nutrition claims. When promoting alcoholic drinks, it’s even more important to ensure the claims do not mislead consumers.

Nutrition claims are claims which state, suggest or imply that a food or drink has particular beneficial nutritional properties. They include claims such as “low calories”, "sugar free”, “reduced sugar”, “with no added sugar” or “a source of vitamin [X]”. Even seemingly vague claims such as “Light” or “Natural” are categorised as nutrition claims and have to be carefully explained. Nutrition claims can only be made if the product meets certain objective criteria. This is also the case when it comes to claims that have an equivalent meaning - this is the point that trips advertisers up.

If the product meets those objective criteria, then the relevant ‘authorised’ nutrition claim (or an equivalent claim) can be made in relation to that product. If it does not meet the criteria, then the advertiser can’t make that claim (or an equivalent claim). It’s as simple as that.

The guiding principle behind the rules is to ensure that any claim made on a food's labelling, presentation or advertising is clear, accurate and based on scientific evidence. The health and nutrition rules have been around for many years, apply at an EU level and pre-date Brexit. As the ASA pointed out, the rules have been carried over and now brands need to check the Great Britain nutrition and health claims (NHC) register.

While these rules can catch-out the unwary, it is notable that several brands – all in the same competitive product category - have fallen into the same trap at around the same time.

BrewDog is one of those companies that periodically gets into trouble with the ASA, but they usually come away unscathed. For example, they occasionally get into trouble with the ASA for ads that allude to quite strong swear words. BrewDog simply shrugs off upheld ASA rulings against those ads, and no doubt benefits from the additional publicity, which enhances their ‘edgy’ brand image.

However, even ‘edgy’ challenger brands don’t want to be found to have misled consumers. That is harder to shrug off. They might frame this latest upheld ruling as a technicality or they might frame the underlying rules as some kind of historical EU anachronism, but these rules are designed to protect consumers, they are reflected in the rules applicable in Great Britain post-Brexit, and they probably aren’t going anywhere anytime soon.

With BrewDog already in the news recently in relation to its prize promotion to win a ‘gold’ can, that was mistakenly described as ‘solid gold’ but was only gold-plated brass, more bad news from the ASA may be on the horizon for the brewer with that investigation still ongoing. With this latest ruling, the ASA has scratched the surface of BrewDog’s claims of nutritional benefits, and found that they, too, are not as solid as they claimed.