The Advertising Standards Authority and Misleading Advertising

Around 70% of complaints received by the Advertising Standards Authority (“ASA”) each year are considered under rules about misleading advertising.

Recently the beer company, BrewDog, has found itself under scrutiny in respect of a marketing email which featured the subject heading “One of your five a day”.

The body of the email featured the heading “FEELING FRUITY” in large font above an image of a BrewDog beer can with the text “HAZY JANE GUAVA” written on it. Smaller text underneath stated, “Summer is well and truly here. Quench your thirst while soaking up the sun (or rain) with our fruit laden favourites. From Pineapple Punch to our limited edition Hazy Jane Passionfruit, we’ve got all your fruit needs covered!”

One person challenged whether the claim, “one of your five a day”, was misleading.

Whilst BrewDog acknowledged that their beers did not count towards a consumer’s “five a day”, BrewDog said that the email was “tongue-in-cheek” and that the email was sent to its existing customers who had opted into receiving marketing emails from the company and therefore aware of its playful marketing style.

In response, the ASA acknowledged that some consumers would have interpreted the subject heading of the email as a humorous nod to the fruit flavoured beers in the body of the email. However, as the claim referred to well-known government advice on health and wellbeing, consumers would not generally expect advertisers to include such claims unless the advertised product was recognised as meeting the requirements of that advice.

Further, the ASA said that because many consumers would be aware that some craft beers contained an unusually high amount of fruit, it may lead to confusion as to whether the beers with fruit content counted as a portion under the government’s “five a day” advice.

The ASA also noted that including the claim in the email’s subject line positioned it as a “key element” of the message they were trying to convey.

The ASA therefore considered that consumers were likely to interpret the claim “one of your five a day” literally, so the claim was misleading. BrewDog must ensure that any future ads or marketing emails do not misleadingly imply that alcoholic beverages were part of the guidance.

The decision taken by the ASA has received mixed views as it was not clear which basis the assertions made were based upon and has led to suggestions that the ASA should have credited the average British consumer with enough common sense to understand they shouldn’t have taken the claim literally. After all, “Red Bull does not give you wings” and “skittles do not taste of rainbow” as highlighted by BrewDog’s CEO…