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Product: Food and Beverages
ASAI Code 7th Edition: 2.4(c), 4.1, 4.8, 4.9, 4.10, 4.31, 4.32, 4.33, 4.34
A press advertisement in The Sunday Times Magazine for Fever-Tree featured a pairing wheel for various gins with Fever-Tree tonics.
The advertisement stated:
“The Ultimate Gin & Tonic Pairing Guide”
The wheel was divided into four sections, each section represented the characteristics of various gins and the variant of Fever-Tree tonic that they recommended for each gin.
Section 1 of the wheel stated:
“Juniper Rich & Robust Gins
Aromatic Tonic – made with angostura bark”
Section 2 of the wheel stated:
“Citrus & Herbaceous Gins
Mediterranean Tonic – made with rosemary and lemon thyme”
Section 3 of the wheel stated:
“Sloe & Sweeter Gins
Lemon Tonic – made with Sicillian lemons”
Section 4 of the wheel stated:
“Fresh & Floral Gins
Elderflower Tonic – made with British elderflowers”
The centre circle of the wheel stated:
“Premium Indian Tonic Water with naturally sourced Quinine”
A circle surrounding the centre circle stated:
“Naturally Light with 58% fewer calories”
Text underneath the pairing wheel stated:
“Gin is only as good as the tonic it’s paired with. That’s why our award-winning tonics have been carefully crafted to compliment the varied flavour profiles of gin. Find the perfect tonic for your favourite gin at fever-tree.com.
If ¾ of your drink is the mixer, mix with the best (tm)”
Coca-Cola Ireland objected to the advertisement on the grounds that it was in breach of Article 4 of the Directive concerning misleading and comparative advertising, Sections 43 and 44 of the Consumer Protection Act 2007 and the ASAI Code.
They considered that the claim in the advertisement, “If ¾ of your drink is the mixer, mix with the best (tm)” was damaging to consumers and to competitors and was misleading as it would be likely to cause a consumer to make a transactional decision that the average consumer would not otherwise make, and would cause them to be misled. They also considered that the claim was comparative against all other products on the market. They said that Coca-Cola and their brand Schweppes were very well-known brands with high market shares in Ireland and they considered that the advertisement was therefore implicitly referring to their products. In view of this, they said that Fever-Tree were bound to comply with Article 4 of the Directive and rules 4.31, 4.33 and 4.34 of the ASAI Code and they considered that the claims had misled consumers and had denigrated their products.
They also considered that the claim “If ¾ of your drink is the mixer, mix with the best (tm)” led consumers to believe that Fever-Tree products were the best in the market and they considered that this was an exaggerated claim that was purely misleading. They considered that the claim to ‘mix with the best’ was an objective and persuasive claim which must be backed-up by objective assessment and that Fever-Tree had not provided any cross-reference to evidence or any substantiation. They considered that it was not clear from the advertisement whether the claim was merely based on Fever-Tree’s own opinion as opposed to them making an objective claim that their products were the best on the market.
They argued that the claim was an implicit comparative claim being made against their (Coca-Cola) products as their mixer brand, Schweppes, has the leading market share in Ireland for tonics. They also considered that the advertising implied that Schweppes was an inferior product to Fever-Tree without any substantiation.
Finally, they considered that Fever-Tree were making unqualified, superlative and misleading claims as they had implicitly compared their product to Coca-Cola’s products and were therefore denigrating their products as a result and creating an artificial advantage.
In response to the complaint regarding the statement: “If ¾ of your drink is the mixer, mix with the best (tm)” the advertisers referred to Section 2.4c of the Code and said that the advertisement had a single focus, the pairing of Fever-Tree’s range of tonic waters with various gins. They said that the pairing wheel in the advertisement had indicated to the consumer which Fever-Tree tonics mixed the best with their favourite gins and it was in this context that the claim had been made.
They said that the essence of the complaint was that Fever-Tree were claiming to be the best in the market. They considered that the complaint had not been supported on any reasonable interpretation of the claim and the context in which the advert appeared. They also said that their advertisement had made no express reference to other mixers and, in their view, it was unlikely that a consumer reading the advertisement would actively identify that an implied comparison was being made with Coca-Cola or Schweppes, let alone that such brands were being ‘denigrated’.
They said that even if one were to ignore the requirements of Section 2.4c of the Code and looked at the claim through the lens of being ‘the best in the market’ as the complainants alleged, it was their view that the statement would be seen as a statement of their subjective opinion and would therefore, not be in breach of the Code. They referred to Section 4.8 of the Code which permits advertisers to state an opinion about the quality or desirability of their product, provided that it was expressed as a matter of opinion rather than fact and there is no likelihood of consumers being misled. They said that the claim related to a factor that was inherently subjective, personal taste and consumers would not believe that the claim was objectively true and that every potential mixer that exists had been assessed in some way to determine which was ‘the best’. They said that what makes a drink ‘the best’ would mean many things to many people and could be contrasted with cases where criterion for the ‘best’ claim was stated, which were objective and capable of substantiation. As the claim would be a matter of subjective opinion without any objective or verifiable content, then consumers would immediately recognise it as mere puffery which could not be objectively proven. Therefore, consumers would not take the claim literally.
Complaint Not Upheld.
The Complaints Committee considered the detail of the complaint and the advertisers’ response.
The Committee considered the context for the claim ‘mix with the best’. They noted that claims could be implicit comparative claims against some or all competing brands.
In this case, however, they considered that the advertisement had specifically been about tonics from within the brand’s own product portfolio being paired with different gins, based on flavour characteristics. Furthermore, as the advertisement had included an opinion that “Gin is only as good as the tonic it’s paired with”, the Committee considered that the advertising claim, “If ¾ of your drink is the mixer, mix with the best”, referred to finding the best mixer from within the product portfolio being advertised, for each type of gin.
In the circumstances the Committee did not consider that the advertising was comparing Fever-Tree tonics to others on the market, nor did they consider that it was denigrating other tonics. In the circumstances the Committee did not consider that the claim in this context was in breach of the Code.
No further action required.