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Whoops! Whopper ad banned by the ASA

The advertising regulator in the UK, the Advertising Standards Authority (ASA) has banned Burger King’s ads for its new ‘Rebel Whopper’, a plant-based alternative to its hugely successful ‘Whopper’ beef burger. The ASA ruled that the ads were misleading, because the overall impression of the ads was that the Rebel Whopper was suitable for vegans and vegetarians when in fact it was not.

We will examine the ASA’s decision in this blog.

The Rebel Whopper

Burger King admitted to being late to the plant-based party, with other fast food outlets already serving meat-alternative products, Greggs being a good example with its hugely successful vegan sausage roll.

The Rebel Whopper is Burger King’s first plant-based burger and was created in conjunction with the ‘Vegetarian Butcher’ (now part of Unilever, a famous producer of plant-based proteins, praised by food critics around the world). However, Burger King made it clear that it wanted the Rebel Whopper to have the same famous ‘flame-grilled’ taste of the beef Whopper, so both burgers would be cooked in the same grill plate. As such, Burger King did not outwardly say that it would be suitable for vegetarians and vegans.

Because of this, commentary even before the launch was mixed. Vegan commentators hailed it as ‘the near vegan burger’ and the target audience appears to be so-called ‘flexitarians’, those that want to reduce their meat intake.

It is worth noting that the Rebel Whopper was finally launched in the UK during ‘Veganuary’, a well-known campaign encouraging people to go vegan for the month of January.

The Ads

The three ads in question (the Ads) appeared in Burger King’s Twitter and Facebook feeds:

a) A tweet showed an image of the Rebel Whopper with a round sticker which stated, “100% WHOPPER. NO BEEF”, it also stated that T&Cs applied (the First Ad).

b) A Facebook post had the same information and also contained a round logo which stated “POWERED BY THE VEGETARIAN BUTCHER”. Small text at the bottom of the image stated “*Product is cooked alongside meat products” (Second Ad).

c) Another Facebook post stated “TASTE OF BEING WOKE” next to an image of the Rebel Whopper. Smaller text beneath that stated, “100% WHOPPER. NO BEEF” with very small text beneath stating that T&Cs applied. The Vegetarian Butcher logo was also shown at the top of the post (Third Ad).

The complainants understood that the Rebel Whopper was not suitable for vegans, or vegetarians and those with egg allergies because it was cooked alongside meat products and used egg-based mayonnaise. However, they challenged whether the claims “100% Whopper No Beef” and “plant-based burger” in the Ads were nonetheless misleading.

ASA Ruling

The ASA upheld the complaint by deciding that the ads were misleading and in breach of CAP Code Rules 3.1 and 3.3 (Misleading Advertising). The Ads gave the overall impression that the Rebel Whopper was suitable for vegans and vegetarians when in fact it was not.

The ASA took the following factors into account when making its decision:

a) Consumers would understand that the claims “100% WHOPPER. NO BEEF” and “plant-based burger” to mean that the burger did not contain any beef or animal products.

b) The presence of the “Vegetarian Butcher” logo, the green colour palette and launch during Veganuary contributed further to the impression that the product was suitable for vegans and vegetarians.

c) Although the patty itself was plant-based, it was cooked on the same grill as meat products.

d) The burger contained egg-based mayonnaise.

e) The qualification “cooked alongside meat products” in the Second Ad would not be enough to change consumers’ overall impression and in any case, it did not mention the egg-based mayonnaise. The text was also missing from the Third Ad entirely and only appeared hidden in the small print of the First Ad.

Commentary

This ruling shows that the ASA will look at all material facts when making decisions and it is of crucial importance that each ad is examined carefully to ensure that it is not misleading when viewed as a whole. Disclaimers must be clearly and prominently displayed and not hidden in the small print, but they might not always work to prevent consumers from being misled.

This post was written by Ailin O’Flaherty.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 133
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About this Author

Carlton Daniel Intellectual Property Attorney Squire Patton Boggs London, UK
Partner

Carlton Daniel advises on intellectual property rights, commercial contracts and consumer regulatory law. He handles both contentious and non-contentious matters.

Carlton has a particular focus on providing advice to clients in the advertising, marketing and media sectors, and also to businesses operating in the food and drink, retail, automotive and tech sectors.

Intellectual property rights: Carlton has significant experience advising on the exploitation and protection of trade marks, designs, copyright, databases, confidential information and patents. As...

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