Unsponsored advertisements: Key takeaways from the ASA's ruling on The Muff Liquor Company

On 8 February 2023 the Advertising Standards Authority ("ASA") ruled that advertisements posted by Laura Whitmore relating to alcoholic drinks sold by The Muff Liquor Company (the "Company"), in which Whitmore is an investor, breached a number of the CAP Code.

The advertisement in question was posted to both Whitmore's personal Instagram and TikTok accounts, and featured Whitmore dancing with increasing energy after drinking the company's 'Muff & Tonic' alcoholic drink.

The ASA received one complaint which challenged whether the posts were obviously identifiable as advertisements and whether they were directed at individuals under 18 years of age. The ASA also challenged whether the posts encouraged irresponsible drinking.

Recognition as a marketing communication

Despite having no contractual agreement with the Company to promote their drinks, the ASA still considered Whitmore's posts to form a marketing communication for the purposes of the CAP Code as they were directly connected to the sale of goods in which she has a commercial interest. In determining whether the posts were obviously identifiable as marketing communications, the ASA considered: (i) the inclusion of certain hashtags with the posts as opposed to the usual inclusion of '#ad'; and (ii) the fact that Whitmore was a shareholder in the Company.

In relation to the hashtags, the posts were accompanied by the hashtags '#muffboss' and '#irishowned', which Whitmore and the Company claimed made clear that Whitmore was a shareholder in the Company. It was determined that the use of the word 'boss' did not sufficiently indicate ownership or commercial intent, and so was unlikely to be interpreted as indicating advertising to consumers. The ASA also considered that the use of the word 'boss' could denote a positive sentiment, and so could have been understood by consumers as an endorsement of the product. In the case of the second hashtag, '#irishowned', it was noted that the Company's product was made in Ireland and that consumers may have understood the hashtag to mean the product is of Irish heritage, as opposed to associating it with Whitmore being a shareholder in the Company.

Further, although Whitmore had disclosed that she was a shareholder in the Company through previous social media posts, it was determined that since the posts could appear in public search results by virtue of her having a public profile, the posts could be viewed in isolation to Whitmore's profile resulting in the disclosure of her status as shareholder being missed by consumers.

As a result, it was determined that the posts were not obviously identifiable as marketing communications, and were in breach of CAP Code rules 2.1 and 2.3 (Recognition of Marketing Communications).

Directed at under-18s

In consideration of whether the posts were directed at individuals under 18 years of age, the ASA separately considered the advertisements as uploaded to Instagram and TikTok.

Looking first at Instagram, it was stated that 2.7% ('significantly' less than 25%) of Whitmore's following was made up of individuals under the age of 18. When combined with the fact that this was not a post for which any payment was made, it was determined that the majority of its viewers would be Whitmore's followers and therefore had not been inappropriately targeted to under 18s. A further factor taken into consideration was that the Instagram 'Explore' feed is not the primary way in which consumers would interact with the advertisement, and so it is unlikely that children would be overrepresented in the audience of the advertisement.

In relation to the advertisement posted to TikTok, there was no demographic breakdown data available for Whitmore's followers. Interestingly, it was the mechanism by which TikTok shares content with its users which was considered by the ASA. Unlike Instagram, TikTok mainly disseminates information through its algorithmically driven 'For You' page, resulting in users seeing content from users who they do not follow, but which they are likely to be interested in. As a result of Whitmore's position as a host of the popular television programme 'Love Island', it was considered that the algorithm would determine Whitmore's posts would be of interest to under-18's, and therefore appear on their 'For You' pages.

Further, the ASA noted that TikTok's advertising policy prohibits the advertising of alcohol products and as such does not offer any support or tools to target these types of advertisements. As a result, the ASA was not convinced that Whitmore had taken all appropriate steps to restrict or exclude under-18s from seeing the advertisement. It was therefore determined that insufficient care had been taken in relation to Whitmore's post on her TikTok account to ensure it was not directed at individuals under the age of 18, and was therefore in breach of CAP Code rule 18.15 (Alcohol).

Social responsibility

In considering whether the posts were socially responsible for the purpose of the CAP Code, the ASA focussed on Whitmore's reaction to drinking the drink and noted that her dancing became more 'energetic', 'confident' and 'enthusiastic' as she transitioned from drinking water to the 'Muff & Tonic' in the posts. It was determined that Whitmore's representation of consuming alcohol could therefore be interpreted by consumers as enhancing an individual's confidence and changing their behaviours.

The ASA also considered the content of the caption and the background audio of the posts, determining that the posts were intended to portray sobriety as being 'boring', and that the posts reinforced irresponsible drinking. It was therefore determined that the posts breached CAP Code rules 18.1, 18.2 and 18.7 (Alcohol).

Key Takeaways:

• The '#ad' hashtag should be used in relation to marketing materials, even where the publisher has not been paid to post the content but otherwise has a commercial relationship with the brand.
• The ASA will consider the content of marketing material as well as the tools available and used on the platform to which it is posted in considering whether sufficient care had been taken to ensure it is not targeted at under-18s.