The Committee of Advertising Practice (CAP) Code prohibits marketers from suggesting that alcohol can enhance mental or physical capabilities or sporting achievement (rule 18.7).
Marketing communications that suggest alcohol can make the drinker smarter, wittier, sharper, more focused, stronger, faster or higher performing in some way are almost certainly unacceptable. Furthermore, claims such as “energising” that imply alcohol has a positive effect on mental or physical capabilities are likely to be off limits. That is not to say that marketers cannot say that intelligent or physically capable people choose their brand but they should steer clear of implying a causal link between their product and improved mental or physical capabilities. In 2007, the Advertising Standards Authority (ASA) rejected a marketer’s argument that his campaign merely conveyed that smart and sassy people drink the product (Intercontinental Brands Ltd, 21 February 2007). Marketers should therefore take care when trying to target their brand at an audience to whom others might reasonably be attracted.
An example of a potential link between an enhanced capability and alcohol can be seen in the 2019 ad for Bombay Sapphire. The ad, which was a cinema and video-on-demand (VOD) ad, showed various artists creating artistic projects, with a tagline stating “Stir creativity”. The ASA investigated whether the ad implied that consuming alcohol could enhance creativity, but noted that as the ads did not show any of the artists consuming alcohol before, after or during their work, and only the final frame depicted the alcohol itself (which was unopened and sealed), those seeing the ad were unlikely to infer that the consumption of alcohol had acted as a catalyst for the artists’ work or had aided its completion (Bacardi Global Brands, 8 January 2020). As always, context and nuance are key.
Marketers are not prohibited from using sportsmen and women or featuring a sport in their ads. Marketers may use sports personalities (subject to them not appealing to the under-18s and being over 25) but should not imply that alcohol has contributed to their sporting achievement or imply an endorsement if none exists. The difficulty comes when sportspeople are shown wearing their club or national kits (and are therefore shown as being successful), especially if they are also shown drinking.
The ASA received complaints about an ad that featured a free-runner were under the age of 25. Although the advertiser objected that neither ad showed the individual drinking, the ASA upheld both complaints on the grounds that the individual was shown on their own in the ad and was therefore considered to be playing a significant role. Although the ASA upheld the complaint that the free-runner should not have appeared in the ad because of his age, it rejected a complaint that the ad implied the advertised drink was seen to enhance his physical capabilities (Cell Drinks, 3 August 2011).
Marketers may feature a sports activity or event as a backdrop, for example sipping drinks while watching a local cricket match, as long as they do not suggest that sporting achievement is or has been enhanced by alcohol. Marketers may advertise their sponsorship of sporting events but should again be careful not to imply their product contributes to sporting success. Generally speaking, marketers are safer using executions that focus on the event, the sport or the audience, not on the players.
Marketers should not suggest alcohol can enhance a sportsman’s ability to cope with a physical challenge by, for example, linking alcohol with a dangerous sport or by suggesting that alcohol can be consumed during or immediately before or after participating. (Scottish Courage Ltd, 27 July 2005).
Advertisers using sporting personalities should be mindful that rule 18.17 prohibits making any health of fitness claims.
Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s Advice Online entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
How can we help!
At LS Consultancy, we offer a complete solution with a range of cost effective, regulatory compliance and marketing products and solutions including Copy Advice which provides pre-publication advice on advertising at any stage.