Plenty of reasons today for me to raise a glass, but not so much for the Love Island host, Laura Whitmore, who was subject to a quite lengthy upheld ASA ruling today.
Nothing to do with this particular picture of Laura (the posts in question have been removed) but lots to do with alcohol. And a brand called Muff Liquor. Yes, I get what they did there 🙄.
What's to celebrate? I have no reason to promote any negativity about Laura. I just think this is a particularly useful ruling as it covers multiple problems and the ASA has provided much-needed clarity on their alcohol rules and how they should be applied to influencers promoting alcohol on Instagram and TikTok.
So buckle-up, we're in for a boozy regulatory ride ...
The two ads in question were on Instagram and TikTok. This is how the ASA described them:
[The ads] featured Ms Whitmore drinking four different beverages whilst dancing. The first drink was “Peppermint Tea” and featured Ms Whitmore slowly moving her legs whilst drinking from a mug. Ms Whitmore then drank the other three beverages: “Water”; "Beer”; and “Muff & Tonic”. Whilst drinking each drink in turn, Ms Whitmore’s dancing became increasingly more energetic. Music in the background included the lyrics “I’ll be fucked up if you can’t be right here”. Text on screen stated “#MakemineaMuff”. The caption stated “If drinks were dance moves @muffliquorco #makemineamuff #muffboss #irishowned”.
The complainant challenged whether the posts were obviously identifiable as marketing communications, whether they were appropriately targeted (they featured alcohol) and the ASA challenged whether the ads encouraged irresponsible drinking.
Let's examine the issues/complaints:
CAP guidance states that influencer marketing posts should be identifiable as ads without consumers needing prior knowledge of the influencer’s commercial relationships.
Laura is a shareholder of The Muff Liquor Company. That means she has a commercial relationship with the brand. And that means her posts featuring that brand are ads. It does not matter that she was not contractually obliged to post about the brand, nor that she had never been paid to post about the brand. The posts were ads and that should have been made clear to their audiences.
Ms Whitmore had announced that she was a shareholder of The Muff Liquor Company in previous social media posts
So does this mean that she's adequately disclosed her commercial relationship already, and no further disclosure is required? No no no. Absolutely not. Each and every social media post should be treated individually and disclosures added to each one. After all, you can't guarantee everyone will have seen the previous posts or the information in your bio so it must be made clear in that post.
The Muff Liquor Company believed that the use of the hashtags “#muffboss” and “#irishowned”, made it clear that Ms Whitmore was an investor
I like this defence. I'm tempted to check Companies House to see if I can change my company name to Hashtag MuffBoss. It's so much catchier than Hashtag Ad. Sadly it's not actually an acceptable disclosure label, much like #irishowned. The ASA stated that neither were clear identifiers of advertising content.
The CAP Code states that ads for alcoholic drinks must not be directed at people under 18 years of age through the selection of media or the context in which they appeared. It also states that no medium should be used to advertise alcoholic drinks if more than 25% of its audience is under 18 years of age
Because Laura was able to show, using demographic data, that only around 2.7% of her audience were under 18, the Instagram post did not breach this rule.
It's important to note TikTok's response to this point. They pointed out that the promotion of alcohol is prohibited under their Branded Content Policy. But Laura had not used their Branded Content Tool and so her post had flown under the radar. Had she used the tool, it would have been blocked from being posted organically. Additionally Laura had breached their Terms of Service by not using the tool for her branded content.
Not only was the post in breach of TikTok policy, but it also breached the ASA rules on targeting of alcohol ads. The ASA cited BARB data which showed that Love Island was the fifth most watched programme by those aged 4 to 15 year olds in the second quarter of 2022. Because of that, the ASA considered that the programme was popular among under-18s and, consequently, we that a large proportion of individuals who were under-18 with TikTok accounts were likely to interact with content related to Love Island on the platform. Even if those individuals did not follow Laura, the ASA felt it was likely that the algorithm would determine Laura’s posts to be of interest to them, meaning they would appear in their “For You” page.
The CAP Code states that marketing communications must be socially responsible and must not suggest that alcohol has therapeutic qualities, is capable of changing mood, or could enhance confidence.
It's at this point that the poor ASA executive in charge of this case was forced to give a graphic description of Laura's dance moves. The ad has been removed so we can't comment on the accuracy of the description but while drinking peppermint tea there were some relatively sedate moves, but when drinking the Muff and Tonic, the ASA said there was thrusting of hips, shaking of buttocks and tongue waggling. What's wrong with that, you might ask? Because Laura danced more confidently while drinking alcohol, it suggested that the alcohol was responsible for changing her mood and increasing her confidence - in breach of the CAP Code. This was further exacerbated by the caption “If drinks were dance moves”.
Lyrics featured in the ad stated “I’ll be fucked up if you can’t be right here”
And finally, the ASA also took into account the music used. They said that the lyrics would be interpreted as a reference to drinking excessively and therefore the ads encouraged irresponsible drinking.
There are plenty of key points for alcohol brands, influencer agencies and influencers to learn from just this one ruling. When it comes to alcohol, it's not just a simple case of making a quick TikTok dance and reaping the rewards from a viral video. There are numerous advertising rules and social media platform rules to consider and the ASA are unlikely to pass up an opportunity, just like this one, to make an example of a reality TV celebrity.
Shareholder = commercial relationship with brand = advertising = ad disclosure required.
Announcing shareholder relationship in previous post ≠ disclosure in this post.
#muffboss is not a suitable ad disclosure.
#irishowned is also not a suitable ad disclosure.
Alcohol ads should not be directed at under-18's.
Alcohol ads should not be in a medium with more than 25% under-18's.
Promotion of alcohol is prohibited by TikTok under their Branded Content Policy and it is a breach of their terms to post branded content outside of this Policy.
BARB data shows that Love Island was the fifth most watched programme by those aged 4 to 15 year olds in the second quarter of 2022.
Laura's raunchy dance moves suggested that her alcoholic drink could enhance her confidence, in breach of the rules.
The ASA can investigate not only captions, hashtags and dance moves, but also the lyrics of music used in posts and those lyrics must be socially responsible.
If your brand or agency would like training or bespoke guidance on the rules for influencer marketing, contact Rupa using the webform or connect with me on LinkedIn. And for influencers, check out the new Influencer Legal 101 e-course.