By Rohan Vasudevan, Solicitor

Recently, Alcohol Beverages Advertising Code (ABAC) announced the implementation of a new ABAC Responsible Alcohol Marketing Code (“Code”) that will affect the way that alcohol (and now, ‘alcohol alternatives’) are marketed in Australia, with the aims to continue to promote responsible and ethical advertising practices for advertisers. The updated Code, which took effect from 1 August 2023, seeks to address concerns regarding advertising alcohol noting the increase in the number of ABAC complaints and determinations in recent times.

So what changed and how will it affect the industry?

What is the Code?

In essence, the Code is a set of guidelines and principles developed by ABAC as framework for advertisers of alcoholic products to promote responsible and ethical marketing practices via a set of practice standards. Furthermore, the Code specifically aims to work alongside the objectives outlined in the National Alcohol Strategy for the reduction of harm and the individual State/Territory legislation pertaining to alcohol. We do also note that the Code works in conjunction with the AANA Code of Ethics (the “AANA Code”), meaning that advertisements for alcohol must adhere to all regulations and standards, including both the Code and the AANA Code.

What happened?

The most recent full review of the Code was undertaken in 2014 (although some target reviews did take place in 2017) and a periodic review of the Code was inevitable, especially given the changing landscape of the advertising sphere since the previous full review was undertaken.

As such, in 2022, ABAC began the formal process of reviewing the Code and sought public submissions. We do note that the Code is known as one of the strictest codes in the world meaning that in Australia we have some of the toughest alcohol regulations pertaining to marketing alcoholic products. It is no surprise then that ABAC received a number of various submissions with differing viewpoints from stakeholders, with some outlining that the Code is too stringent and burdensome while others requested that alcohol advertising be completely banned altogether.

What are the changes?

After assessing all of the submissions, ABAC implemented a number of changes. Some of the changes were to clarify the Code and others were to add in additional wording to expand the Code’s applications. So while alcohol advertising has not been banned, there have been further restrictions on messaging, and we have outlined some notable changes below.

Therapeutic benefits

During the COVID-19 pandemic and thereafter, ABAC received a number of complaints about alcohol being promoted as a suitable coping mechanism. The Code always prohibited advertising which suggested that alcoholic beverages offered therapeutic benefits. However, now the Code expressly outlines that alcoholic beverages cannot offer therapeutic or health benefits (including mental health), and cannot be used to help overcome problems or adversity.

While there are reports that the level of alcohol consumption is decreasing since the large increase over the pandemic, the changes appear to clarify ABAC’s stance that brands should not be advertising alcohol to assist with health conditions (including mental health conditions).

What about low alcohol and non-alcoholic beverages?

ABAC specifically outlined that since 2017 there has been a rise of low alcohol and non-alcoholic beverages (which are otherwise known as “alcohol alternatives”) that have been released in market and actively being promoted.

Previously, alcohol alternatives were not specifically defined as being within the Code’s purview. However, there is now a specific definition in the Code which outlines that:

“Alcohol Alternative means a beverage that is at or less than 0.5% alcohol by volume that:

• has an appearance and style commonly associated with alcohol; and
• uses a brand or descriptors commonly associated with alcohol, such as, beer, wine, spirit or other; and
• is not a beverage commonly understood as non-alcoholic, such as fruit juice, soft drink, flavoured milk or other which fall outside the Code remit”.

Furthermore, there is also now a definition for Alcohol Alternative Marketing Communications, which are now subject to ABAC by virtue of a new Part 5.

Under Part 5, ABAC requires that Alcoholic Alternative Marketing Communications comply with Part 3(b) of the Code (i.e. the obligations around the responsibility towards minors) as well as Part 4 (i.e. obligations regarding placement) in all circumstances. In addition, compliance with Parts 3(a), (c) and (d) of the Code (i.e. obligations regarding the depiction of alcohol generally) will apply when marketing/packaging “fails to clearly and prominently identify the product as an Alcohol Alternative or also promotes an alcohol product (beyond a common brand name) or alcohol use”.

The extension of the Code to capture alcohol alternatives could be seen as surprising given that, on the one hand, alcohol alternatives are often used and marketed as a ‘safer’ alternative to their alcoholic counterparts. For example, alcohol alternatives like ‘zero alcohol beer’ are often marketed as a safer or ‘better’ alternative and there are advertisements for zero alcohol beers that are directed specifically at people who do not want to drink for safety or health reasons. That is, some of the messaging around alcohol alternatives aim to reduce the consumption of alcohol and the harm related with alcohol, which mirrors the purpose of the Code.

However, ABAC are of the view that the promotion of alcohol alternatives may be used as a ‘gateway’ meaning that individuals (including minors) who are exposed to alcohol alternatives may very well end up be persuaded into drinking full strength alcoholic beverages, and therefore ABAC added in additional wording into the Code and its reach was expanded. The fact that the Code has been expanded to include alcohol alternatives, and in particular that compliance with Part 3(b) must be adhered to in all circumstances, indicates the strong focus that ABAC has towards the prohibitions of advertising to specific groups such as minors.

Appeal to minors

As mentioned above, it appears as though ABAC had a particular focus on discouraging minors from consuming alcohol when considering the updates to the Code. It is no surprise then that a key focus of the changes to the Code included stricter rules on the brand’s responsibility towards minors. For example, previously alcohol advertisements could only be placed in programmes whose audience were reasonably expected to be at least 75% adults. However, now the Code outlines that the threshold has been increased so now alcohol advertisements can only be placed in programmes where the expected audience is expected to be at least 80% adults.

Other changes to the Code include the prohibitions against using social media influencers who are (or appear to be) under the age of 25 years of age. This change appears to have been made given the rise of the social media influencers being used in campaigns, including alcohol campaigns, in recent times.

In addition to this, the approach to minors in Part 3(b)(i) has been greatly expanded. In the previous Code, 3(b)(i) outlined that marketing communication must not “have Strong or Evident Appeal to Minors”. However, the Code has now been expanded and the updated wording has added: “in particular;

(A) specifically target Minors;

(B) have a particular attractiveness for a Minor beyond the general attractiveness it has for an Adult;

(C) use imagery, designs, motifs, language, activities, interactive games, animations or cartoon characters that are likely to appeal strongly to Minors;

(D) create confusion with confectionery, soft drinks or other similar products, such that the marketing communication is likely to appeal strongly to Minors; or

(E) use brand identification, including logos, on clothing, toys or other merchandise for use primarily by Minor”.

Laughter is the best medicine (or is it?)

ABAC noted the increased instances of humour being used to market alcohol products (especially on social media sites), and there have been a number of complaints pertaining to the use of humour alluding to irresponsible consumption of alcohol. As such, the wording pertaining to the responsible and moderate portrayal of alcohol in 3(a)(i) and (ii) expands the definition of “excessive consumption” and adds a prohibition on “treat as amusing”. This means that, for example, brands will now be explicitly prohibited from using humorous memes and captions in advertising materials which encourages misuse or irresponsible behaviour related to the consumption of alcohol.

Lastly, the wording in Part 3(c)(iii) used to outline that marketing must not “if an Alcohol Beverage is shown (visibly, audibly or by direct implication) as part of a celebration, imply or suggest that the Alcohol Beverage was a cause of or contributed to success or achievement” has been broadened to now cover any social occasion.

What does it all mean?

The changes to the Code are widespread and the updates appear to make the Code stricter rather than more lenient. However, this appears to be in response to the rise in the number of complaints that have been made, and the increased number of recent ABAC determinations. Furthermore, the updates to the Code look to be a response to the changing landscape of the advertising sphere (especially with the rise of digital, social media advertising and use of influencers). It will be interesting to see if the updates to the Code result in fewer complaints, and if the determinations will also decrease accordingly.

Contact us

If you would like further information on advertising regulations, including how the updates to the Code affect your business or campaign, please contact one of our experts.