Knowledge & News

What a whopper!

17 April 2020

The Advertising Standards Authority (ASA) is the UK’s advertising regulator who ensures that all advertisements comply with a set of Advertising Codes. The ASA’s remit includes conventional advertising on radio, TV, cinema, posters and billboards but also any advertisements on the internet, on companies’ own websites as well as commercial emails and text messages.

The ASA recently upheld a complaint against BKUK Group Ltd trading as Burger King in relation to three advertisements on social media promoting their newly launched plant-based “Rebel Whopper” burger in January 2020. The regulator considered that the ads were misleading as the overall impression implied that the burger was suitable for vegans and vegetarians when in fact it was not.

The launch of the “Rebel Whopper” coincided with “Veganuary”, which is a campaign led by a non-profit organisation which aims to encourage people to eat a vegan diet during January. In 2019, over 250,000 people pledged to follow a month-long vegan diet and in 2020, this number jumped to 400,000 participants from across the world.

The plant-based trend looks like it is here to stay. Burger King, like many others, are diversifying their product range to meet the ever-growing demand for meat free alternatives. The fast food chain’s latest offering appears to be aimed at flexitarians rather than vegetarian or vegan consumers.

Following the ASA’s decision, three ads publicising the launch of the burger have been banned from being used again in their current form.

The first offending advertisement, offending ad (a), was on the Burger King Twitter feed, which stated, “You asked and we listened. Introducing the Rebel Whopper, our first plant-based burger!...”T&Cs apply”. A sticker, which stated “100% WHOPPER. NO BEEF” was on an image of the product shown below the tweet.

The two other ads were posted on the Facebook Burger King UK account. The first post, offending ad (b), was similar to the tweet, which introduced the launch of the Rebel Whopper, showed a visual of the product with the “100% WHOPPER. NO BEEF” sticker, reference to T&C’s and included a logo, which stated “POWERED BY THE VEGETARIAN BUTCHER”. At the bottom of the image in small text, it stated “*Product is cooked alongside meat products”.

The second post, offending ad (c), on the Burger King Facebook account showed an image of the burger and the text “TASTE OF BEING WOKE”. Beneath in small font was the text “100% WHOPPER. NO BEEF” followed by “T&C’s APPLY” in even smaller font. The Burger King and The Vegetarian Butcher logos were shown at the top of the post.

The ads attracted ten complaints as it was understood that the Rebel Whopper burger was not suitable for vegans, vegetarians or those with egg allergies as the plant-based burger was cooked next to meat products and used mayonnaise containing egg. It was claimed that the ads were misleading in respect of the terms “100% Whopper. No Beef” and “plant-based burger”.

In response to the complaint, Burger King explained that the Rebel Whopper burger was supplied by The Vegetarian Butcher, did not contain beef and was 100% plant-based.  Burger King referred to the small print appearing on the ads, which stated that the burger may not be suitable for vegans or vegetarians as it was cooked next to meat products. Interestingly, Burger King admitted to omitting The Vegetarian Butcher logo from TV ads as it was considered this could be potentially misleading.

The advertising regulator considered that the inclusion of The Vegetarian Butcher logo, the green colour palette used for the burger wrapping and the timing of the launch of the product to coincide with “Veganuary” gave the impression that the burger was suitable for vegans and vegetarians. It was decided that consumers would understand the claims “100% Whopper. No Beef” and “plant-based burger” to literally mean that the burger did not contain beef or animal products. Whilst it was acknowledged that the patty itself was plant-based, it was cooked on the same grill as Burger King’s meat products.

The regulator considered the small print that appeared in ad (b) “cooked alongside meat products” but this was considered “not sufficiently prominent to override the overall impression that the burger was suitable for vegetarians and vegans”. It was noted that the small print did not refer to the presence of egg mayonnaise and further, that the small print was absent from ads (a) and (c).

The ads were found to have breached CAP Code rules 3.1, which provides that “marketing communications must not materially mislead or be likely to do so” and 3.3, which provides “marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner”. Whether the omission of information is likely to mislead will depend on the context and is decided on a case-by-case basis. Here, the regulator banned the ads from being used again.

It is not the first time that Burger King’s ads have fallen foul of the Advertising Codes. In 2019, there were twenty-four complaints about a tweet on the Burger King Twitter page, which included the text “Dear people of Scotland. We're selling milkshakes all weekend. Have fun. Love BK. #justsaying". The complaints claimed that the ad was irresponsible and encouraged violence and anti-social behaviour. Burger King’s response was that the tweet was intended to be a tongue in cheek reaction to recent events where milkshakes had been thrown at political figures. Given the circumstances, the complaint was upheld and found to breach CAP Code rules 1.3, which deals with social responsibility and 4.4, which covers harm and offence.

All advertisements in the UK are required to comply with the Advertising Codes. The central principle is that all marketing communications should be legal, decent, honest and truthful. Marks & Clerk has expertise in advising businesses on these Codes and has successfully defended and filed complaints on behalf of their clients across a range of sectors.

Authors

Heather Williams

Heather Williams Partner Manchester (UK) Chartered (UK) and European Trade Mark Attorney

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