New guidance on the advertising of alcohol alternatives

As mentioned in our commercial update blog looking ahead to 2024, we highlighted the new rules and guidance on the advertising of alcohol alternatives. Following a public consultation, the Committee of Advertising Practice ("CAP") and the Broadcast Committee of Advertising Practice ("BCAP") published a statement introducing the new rules and guidance (the "Guidance") in relation to the marketing of alcohol alternative products which will come into force on 14 May 2024, amending the separate CAP and BCAP advertising codes (the "CAP Code" and the "BCAP Code", together the "Codes").

This blog will discuss alcohol alternatives, the new Codes and its impact on businesses.

What are alcohol alternatives?

The drinks market has seen an influx of low alcohol and alcohol-free products in recent years, with drinks such as non-alcoholic beer and non-alcoholic wine becoming increasingly popular. This has caused an increase in the number of advertisements of alcohol alternatives. CAP and BCAP, therefore, have considered how the products should be advertised responsibly, taking into account how they cross over with alcoholic products, to assist advertisers and protect consumers.

In the Guidance, CAP and BCAP acknowledge that there is no statutory definition of alcohol alternatives but have regulated this area on the basis that drinks at or below 0.5% ABV are excluded from the definition of ‘alcoholic’ in the Advertising Codes; this reflects factors including the way in which the Licensing Act treats drinks of this strength. The alcohol alternatives market, broadly speaking, uses ‘alcohol free,’ ‘zero alcohol,’ and ‘non-alcoholic’ to describe drinks at or below 0.5%, and CAP and BCAP consider this is a "reasonable and proportionate level" at which to set the baseline for the ABV of alcohol alternatives, and is consistent with the scope of the existing alcohol rules.

Advertising related to alcohol alternatives typically include imagery resembling alcohol products and references to situations where alcohol is likely to be consumed and so CAP and BCAP have concluded that there is sufficient overlap with alcohol marketing to require "careful analysis" of marketing these products. They do not consider however that alcohol alternatives should be brought under the scope of the sections of the Codes which apply to alcoholic drinks. Due to their low risk profile, this would be overly restrictive.

Previously, advertisements for alcohol alternatives were assessed under the general social responsibility rules or the provisions of the Code relating to alcohol where the content promoted alcoholic products.

What are the new rules?

The new rules will appear in section 18 of the CAP code and section 19 of the BCAP code. The key highlights include:

• ABV: Advertisements must include a statement of their ABV.
• Unsafe Circumstances: Advertisements may depict the alcohol alternative in situations where consumption of alcoholic drinks would be inappropriate or unsafe (e.g. prior to driving) provided the advertisement makes it clear that the product is an alcohol alternative and does not encourage or condone the consumption of alcohol in the same situations.
• Consumption Habits: Advertisements must not be likely to disparage sobriety, nor condone or encourage heavy, problematic, or otherwise higher-risk alcohol consumption as desirable.
• Pregnancy: The Guidance upholds current BMA guidance regarding alcohol consumption during pregnancy and confirms that the Code cannot allow messaging which contradicts those Low Risk Drinking Guidelines. Advertisements for 0% ABV drinks are allowed to include pregnancy, with such inclusion being responsible, not appearing to condone or encourage drinking alcohol whilst pregnant and must be clear as to the nature of the product.
• Under 18's and Young People: Advertisements must not be likely to appeal to people under the age of 18, nor use or portray real or fictitious characters who appeal to under 18's. People in the advertisement should also not be behaving in an "adolescent or juvenile manner". The advertisement itself must not be targeted at under 18's through the media chosen and no medium with more than 25% of its audience being under 18 should be used. The advertisements should also not be advertised in programmes directed to appeal to under 18's. The prominent people in the advertisement who are clearly drinking should also not appear to be under 25 years old.

The CAP and BCAP Guidance also highlights some exemptions to the rules, like fermented drinks and kombucha which do contain trace amounts of alcohol, despite being thought of as soft drinks. If advertisers clarify the product contains alcohol, but it is not prominent in the marketing, it will not make it subject to the alcohol alternative rules.

Overall, the rules focus on making clear to consumers that the product featured in an advertisement is an alcohol alternative, and not an alcoholic drink.

Impact

The new rules and guidance provide clarity for drinks companies as they navigate this growth sector. Those businesses who market, or who are planning to bring to market, alcohol alternatives should ensure that these new rules and guidelines have been carefully considered before starting a new marketing campaign. Before the rules and guidance come into force on 14 May 2024, businesses should ensure current marketing campaigns are compliant. This may involve minor updates to text or reconfiguring of the advertisement itself.

Businesses who sell both alcoholic products and alcohol alternatives should keep in mind that there are separate sections for the Codes for each product, and therefore different requirements to consider for both products. Where the advertisement for the alcohol alternative has the effect of promoting an alcoholic drink, then the rules relating to alcoholic drinks will apply. The products should be adequately labelled to provide clarity to consumers.

Non-compliance with the Code could result in complaints and investigations by the Advertising Standards Agency ("ASA"), the UK's independent regulator for advertising, who can request that advertisers withdraw or amend their advertising. This can come at significant cost to businesses where advertisements are found to be non-compliant, as, for example, the whole campaign or labelling on the products could need to be reconsidered and redone.

If you would like to discuss anything raised in this blog in more detail, please get in touch with a member of the corporate and commercial team or your usual Brodies contact.