The Committee of Advertising Practice (CAP) Code contains specific sections on both promotional marketing and alcohol and while promotions involving alcohol are not inherently problematic in England, Wales and Northern Ireland (for information on alcohol promotions in Scotland), promoters need to take care to ensure that they comply with both sections, their legal responsibilities and of course the wider Code.
A brand or marketer that runs a promotion, e.g. multi-buy offers, price promotions, competitions and prize draws, becomes a promoter for the purposes of that promotion. Promoters are responsible for all aspects and all stages of their promotions including ensuring that agencies, intermediaries and staff are able to deliver on the promotion.
- Take care not to condone or encourage excessive drinking
Marketing communications that include a promotion must not imply, condone or encourage excessive consumption of alcohol but this doesn’t mean that promotions involving alcohol are inherently likely to fall foul of the Code.
Including claims or imagery which directly condone or encourage excessive consumption of alcohol are very likely to be problematic. Imagery of people seemingly entranced while drinking alcohol and claims like “SOMETIMES TOO MUCH DRINK IS BARELY ENOUGH!” were ruled to breach the Code (Magicfly Ltd t/a Taking Liberties, 27 November 2013, Opal Lounge, 23 November 2005).
When it comes to consumer promotions with a multiple purchase mechanic promoters need to ensure that the number of items that need to be bought does not encourage consumers to exceed Department of Health guidelines for safe drinking and they should keep up to date with these guidelines. They should also ensure that the duration of the promotion is long enough to allow consumers to participate without drinking excessively or irresponsibly (Fuller Smith & Turner plc, 4 July 2001). A situation where the chances of winning a prize were increased by consuming multiple drinks was ruled to breach the Code by encouraging excessive consumption (Hold Fast Entertainment Ltd t/a The Garage, 27 August 2014).
Multiple-purchase mechanics in trade promotions that are carefully targeted to businesses, rather than at consumers, are generally unlikely to be seen to encourage excessive drinking.
When offering alcohol as prizes, particularly in large quantities, promoters should consider whether they are going to deliver this in all one go or offer vouchers that allow the winner to collect consignments of the product over time. If making a one-off delivery, promoters might have to work harder to avoid being seen to encourage excessive consumption. They should, for example, make sure that the product does not have a ‘best before’ date that requires rapid or excessive consumption. It may also advisable in some cases to include a message that the prize is intended to be shared. Offering a ‘year’s supply’ of alcohol, to be collected in weekly installments, was considered to have been responsibly offered as a prize because of appropriate targeting and that the amount offered was in line with recommended daily guidelines (Bargain Booze Ltd, 16 February 2011).
User-generated content, such as entries to a prize draw or competition, can also become subject to the Code if the promoter incorporates this into their marketing communications by, for example; commenting on, sharing or ‘liking’ the content. A post on Facebook sharing an image of a young man lying face down on a bed, that had been submitted to the advertiser as part of a promotion, along with the comment “Very poor effort! Can you do better than this?” was considered to glorify the idea that the man had consumed a large amount of alcohol and was intoxicated and therefore was ruled to be irresponsible and in breach of the Code (Hi Spirits Ltd, 1 May 2013).
- Ensure your ads are in line with the rest of Section 18
Alcohol promotions that could encourage a style of drinking that is unwise, for example encouraging people to drink at breakfast or early in the day, are likely to be problematic (Corney & Barrow Wine Bars Ltd, March 2011).
Promoters must also take care not to use characters (real or fictitious) that are likely to appeal particularly to people under 18 years of age and be mindful about the selection of media and context in which ads for their promotions will appear. Alcohol promotions should not appear in a medium if 25% or more of the audience is under 18 and promoters are expected to hold evidence that this is not the case. Particular care should be taken when using social media.
The Advertising Standards Authority (ASA) has previously noted that less than 25% of UK Facebook users are registered as under 18, and promoters may easily be able to show that only a very small proportion of those who ‘like’ a page or post are under 18. However, if a promoter requires or encourages people to share a competition post without taking the steps available to restrict the content to over 18s, it is unlikely that they would be able to demonstrate that the final audience comprised less than 25% of under 18s (Hold Fast Entertainment Ltd t/a The Garage, 27 August 2014).
There are, however, differences between social media platforms and on YouTube the ASA is likely to take into account the nature of the channel, the content it produces and the any demographic data available for subscribers to the channel and similar channels in order to judge whether it has been targeted appropriately (Carlsberg UK Ltd in association with Spencer FC, 31 August 2016).
- Don’t forget the requirements in Section 8 (and the rest of the Code)
Promoters are subject to other provisions in the Code; for example, they should state closing dates, any restrictions to entry and other factors likely to affect a consumer’s decision to participate if it would be misleading to omit them. They should bear in mind that the circumstances in which it would be acceptable to change a closing date are very limited. They must also ensure that they follow the rules regarding availability, conduct promotions fairly, promptly and efficiently and give consumers no justifiable cause for complaint.
A supermarket that offered “ANY 3 FOR £10 – £5 each” on selected bottles of wine with the qualifications “Max 12 per customer” and “Available in most stores in England and Wales. Excludes Scotland. Subject to availability. While stocks last” was judged to have breached the Code by not making a reasonable estimate of the demand and misleadingly omitting the end date for the offer (Wm Morrison Supermarkets Plc t/a Morrisons, 26 November 2014).
A competition offering the chance to win festival tickets, £1,000 cash, an iPhone and 20 cases of cider for making a video was judged to breach the Code because the terms and conditions had been amended after announcing the promotion and, although before entries had been received, had not communicated the change effectively. Also the terms and conditions of the competition had not been properly followed in respect of choosing the winner. The ASA was therefore not satisfied that the competition had been administered fairly and concluded that it breached the Code (Brothers Drinks Co Ltd t/a Brothers Cider, 8 August 2012).
Promoters should also ensure that alcohol is not offered, even inadvertently, to those under the legal drinking age. They should therefore satisfy themselves that their promotions are open only to those over 18 and that promotional alcohol goods are not accessible to those under age (for example, by getting participants to collect them through outlets where there is face to face contact). The ASA has upheld complaints where a promoter has not stated prominently that an offer is only for people aged 18 or over (EMAP Elan Ltd, 6 September 2006).
It’s important to remember that the rest of the Code also applies and therefore the marketing of a promotion should not, amongst other things, cause serious or widespread offence. A promotion that stated “Tweet ‘I want to #TasteTheBush’ and you could wine [sic] a case of wine!…” and included an image of a woman, from her chest to her mid-thigh, standing behind a table on which a glass of red wine was resting directly in front of her crotch was ruled to be offensive because that the ad reduce the woman to merely a sexual object and presented her in a degrading manner (Budge Brands Ltd t/a Premier Estates Wine, 4 November 2015).
- Remember that there are legal prohibitions on promotions in Scotland
The Alcohol etc. (Scotland) Act 2010 introduced a number of restrictions on discounts and special offers related to alcohol products. Promoters are therefore urged to seek legal advice before carrying out alcohol promotions in Scotland.
While CAP cannot give legal advice and the ASA is not responsible for enforcing this legislation per se, promoters who do not take reasonable steps to prevents ads for certain types of promotion appearing in Scotland or include a prominent disclaimer making clear that the promotion is not available in Scotland, could be considered in breach of the Code.
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 AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.
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