July 14, 2021

Consumer protection from misleading advertising – the Brewdog gold can controversy

Having advertised that the prize (a solid gold beer can) had a value of £15,000 Brewdog received complaints by consumers when it turns out that the gold can was in fact a brass can with gold plating worth £500.  As reported by the BBC the consumers’ complaints have been referred to the Advertising Standards Authority (“ASA”).

But, what is the law on advertising?

Advertisers are subject to the ASA code.  The code provides, amongst other things, that adverts must not mislead the consumer.  Within that it should be noted that obvious exaggerations (what lawyers refer to as “mere sales puff”) is permitted.  The average consumer is expected to have a reasonable degree of intelligence after all. No one thinks drinking an energy drink will actually grow you wings!

The law here can be found in the Consumer Protection from Unfair Trading Regulations 2008 (the CPRs).  What the CPRs seek to do is prohibit unfair marketing to consumers, and this includes misleading, or aggressive, advertising.  In determining whether an advert is misleading, the ASA will have regard to the CPRs.

Marketing communications are misleading if they:

  • Are likely to deceive consumers and;
  • Are likely to cause consumers to take transactional decision that they would not otherwise have taken.

A “transactional decision” is any decision about making a purchase or not.   A marketing communication may deceive consumers by being ambiguous, or by presenting or omitting important information, that a consumer needs to make an informed decision about making a purchase.

In respect of the Brewdog promotion, would a reasonably well-informed, observant and circumspect consumer truly think that the reference in the Brewdog advert to a “solid gold can” meant exactly that?  Could this be wild exaggeration amounting to mere puff, or is it misleading and/or false so as to be illegal?  Given the increasingly fantastic prizes on offer these days (e.g. HEART radio’s ‘make me a millionaire’) it perhaps isn’t unreasonable for a consumer to take the advert at face value and base his/her decision on making a purchase upon it.

According to their adverts, Carlsberg® is probably the best lager in the world. Who actually believes that? Cheers!

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