One of the most interesting contrasts in advertising regulation around the world is how different countries approach the issue of advertising low-alcohol and alcohol-free beverages, as I discovered when I delivered a webinar with colleagues from the EMEA chapter Global Advertising Lawyers Alliance. If you are interested, you can watch the webinar here, and learn about the different approaches in France, Poland, South Africa and South Africa, as well as the UK.
In some countries, ‘alcohol alternatives’ with 0% - 0.5% ABV (alcohol by volume) were simply outside the scope of the rules for alcoholic beverages, because the products fell outside the definition of an alcoholic beverage. In other countries, however, the policy was that non-alcoholic beverages which shared their branding with alcoholic beverages were simply a proxy for the promotion of alcohol, and should be regulated to control that collateral benefit for the core alcohol brand. In the UK, our current position on ads for ‘alcohol alternatives’ is that if they have the effect of promoting an alcoholic drink, the rules on alcohol advertising apply in full.
It is also worth noting the existence of a third, intermediate category, being the low-alcohol variants, which in the UK we define as products with a 0.5% to 1.2% ABV. These have some alcohol, and so are no alcohol free, but have less alcohol than the full strength variant and were already subject to some specific rules in the UK.
Following a consultation, (which I mention in the webinar), new CAP and BCAP Code rules on alcohol alternative (i.e. 0%-0.5%) product advertising will come into force on 14 May 2024.
In my day…..
CAP says that when the alcohol rules in the CAP and BCAP Codes were developed, the zero-alcohol sector was small, with little advertising. In recent years, however, advertising activity for these products has increased. Although such products are considered non-alcoholic, their advertising often uses imagery reminiscent of alcohol and ads often mention drinking occasions. As the CAP and BCAP Code include rules that prohibit condoning or encouraging immoderate, irresponsible, or anti-social drinking, CAP and BCAP considered that marketers of alcohol alternatives would benefit from new rules and guidance to clarify how these products can be marketed responsibly.
The new rules will be set out in Sections 18 and 19 of the CAP and BCAP Codes respectively. They apply to the promotion of beverages with an ABV at or below 0.5% which are marketed as alternatives to alcoholic drinks. Many of the rules depend on the content of an ad and the context in which it appears, and so are accompanied by formal guidance that explains how the rules should be interpreted and applied, including examples of approaches that would not be acceptable. The rules are similar to those in force for advertising alcohol, such as not depicting people who are, or look under the age of 25 and ads must not have particular appeal to under 18s.
The guidance covers:
For the purposes of the Codes, alcohol alternatives products are those at or under 0.5% ABV, which is typically in line with how the alcohol alternatives market broadly describes their ‘alcohol free’ products.
Alcohol alternatives are non-alcoholic drinks that are intended to replace alcoholic drinks in contexts where they would normally be consumed, such as non-alcoholic beer. The Codes state that an ad will be subject to the new rules “…if it is likely to be understood by the audience as an ad specifically for an alternative to alcohol, whether in general or as a non-alcoholic version of a particular alcoholic drink…”.
Cross-promotion and shared branding
Advertisements might, whether by accident or design, have the effect of promoting alcoholic drinks. An example would be promotion of alcohol alternatives alongside alcoholic drinks, as part of a wider brand range or by a retailer. The use of alcohol-related imagery (similar packaging, glassware, or serving styles) without clarity about the alcohol-free nature of the product is likely to be considered to have the effect of promoting alcoholic drinks, even though the product itself is an alcohol alternative. Ads for alcohol alternatives which have the effect of promoting alcoholic drinks or a wider alcoholic brand must comply with the rules relating to alcoholic drinks.
Unsafe circumstances and consumption habits
Alcohol alternatives are useful for people who either don't want to, or can't drink alcohol in some or all circumstances, such as people with underlying health conditions or a designated driver. Ads for alcohol alternatives are not prohibited from depicting these scenarios, provided that it is clear in the ad that the product is an alcohol alternative. Advertisers should take care to ensure that it is clear to consumers that, what might appear to be unsafe or inappropriate consumption, is acceptable because the product does not contain alcohol.
Depictions of pregnancy
The Chief Medical Officer's guidance advises against any alcohol consumption during pregnancy, so CAP says that it would not be appropriate for their guidance to permit marketing of alcohol alternatives in a manner which undermines this advice. As a result, it permits ads for alcohol alternatives which contain no alcohol whatsoever (0.0% ABV) to depict pregnancy. Such depictions must be responsible, the nature of the product must be clear, and the ads must not appear to
condone or encourage consumption of alcohol in these contexts. The guidance acknowledges that this is a stricter approach than taken by some regulators internationally.
Marketers also need to take the same sort of care with targeting as they would for alcohol ads generally, so that they are not aimed at the under 18s.
The CAP Code rules and guidance will take effect on 14 May 2024, following a six-month grace period to allow advertisers to make necessary changes to their campaigns.
So now is the time to start looking at your strategies for advertising alcohol-free beers, wines and spirits, and considering whether you'll be “over the limit” when the new rules take effect. We anticipate a round of ASA decisions once the new rules takes effect, as the ASA will be anxious to build up a body of formal adjudications to demonstrate how those rules apply in practice.
"Water taken in moderation cannot hurt anybody." Mark Twain