The popularity of streaming services and online viewing platforms has meant that companies need to look beyond newspapers, magazines and television in advertising products and services through the media. One popular outlet has been YouTube, the free (and very popular) video sharing website. A number of industries have sought to tap into the platform to advertise their wares, including the alcohol industry – as advertisements are interspersed throughout videos viewed on the platform, normally in blocks of two advertisements per break.
In Australia, the advertising of alcoholic beverages is subject to an amalgam of laws and codes of practice (a quasi-regulatory system) that regulate and guide the content and, to some extent, the placement of marketing. This includes provisions within the Australian Consumer Law, legislation administered by the Australian Communications and Media Authority, State liquor licensing laws and various Industry codes of practice.
What this means in practice is that advertisers need to closely examine their proposed alcohol marketing communications to ensure compliance not only for content but also the location of and medium used by them against amongst other things, the ABAC Responsible Alcohol Marketing Code (ABAC Code).
The ABAC Code outlines the standards for alcohol marketing in Australia, and applies to print, billboard, digital, cinema, television, producer point of sale, packaging and all other forms of marketing around alcohol – including YouTube.
What is the ABAC Code?
The ABAC Code sets standards for alcohol marketing in Australia. It is designed to ensure that alcohol is marketed in a responsible manner, and is broken down into four sets of standards:
- responsible and moderate portrayal of alcoholic beverages;
- responsibility towards minors;
- responsible depiction of the effects of alcohol; and
- alcohol and safety.
The ABAC Code is operated and managed by a management committee comprised of representatives from the various associations within the industry including the Brewers Association of Australia, and Australian Grape and Wine.
Where either the management committee, or a member of the public, believes that an entity has fallen foul of the ABAC Code, they are able to make a complaint through the ABAC Scheme website, which is then considered and ruled upon by an adjudication panel. For ease of public access, Ad Standards also provides a common entry point for alcohol marketing complaints.
Additionally, companies are able to place their advertising or marketing campaign before a pre-vetting committee for review prior to its public release, to seek confirmation that it is compliant with the ABAC Code.
In the event that the panel upholds the complaint, the relevant company must (amongst other things) withdraw, discontinue or modify the marketing in question as soon as possible, and no later than five business days after the panel's decision.
Carlton & United Breweries (CUB) recently released a line of fruit beers known as "Sungazer Fruity Beer". In advertising the product, it created a number of different video advertisements, at least one of which was shown on YouTube. Unfortunately, YouTube displayed one of the Sungazer advertisements during a video for the Royal Academy of Dance children's ballet practice (Ballet Video). This led to a complaint being made with the ABAC Scheme on 2 November 2022.
The Sungazer advertisement had not obtained pre-vetting clearance from ABAC.
The complaint against the Sungazer advertisement proceeded on a number of bases, including, relevantly, the following:
- the Ballet Video is predominantly watched by people under the age of 18, with the Grade 1 Ballet Exam shown in the Ballet Video in question being aimed at children between the ages of 7 and 10.
- the advertisement was not able to be skipped, meaning that it was not possible to exclude minors from seeing it during the Ballet Video.
Notably, the parent of the child watching the video was logged into YouTube under their own account, and they were over the age of 18.
Under the ABAC Code, companies must not engage in marketing of products that are directed at minors through a breach of any of the "Placement Rules" under the ABAC Code, which include:
"(i) A Marketing Communication must comply with codes regulating the placement of alcohol marketing that have been published by Australian media industry bodies (for example, Commercial Television Industry Code of Practice and Outdoor Media Association Placement Policy).
(ii) A Marketer must utilise Available Age Restriction Controls to exclude Minors from viewing its Marketing Communications.
(iii) If a digital, television, radio, cinema or print media platform does not have age restriction controls available that are capable of excluding Minors from the audience, a Marketing Communication may only be placed where the audience is reasonably expected to comprise at least 75% Adults (based on reliable, up-to-date audience composition data, if such data is available).
(iv) A Marketing Communication must not be placed with programs or content primarily aimed at Minors.
(v) A Marketing Communication must not be sent to a Minor via electronic direct mail (except where the mail is sent to a Minor due to a Minor providing an incorrect date of birth or age)."
In response to the Placement Rules concerns, CUB noted that YouTube did have age restriction controls in place, and that CUB's advertising purchases through YouTube were only to be served to people that were signed in and who had indicated that they were over the age of 18. It also noted that those restrictions:
"rely on the content being tagged/categorised correctly by content creators and by YouTube in order for them to be accurate. It appears in this case that this content has not been categorised as children’s content when it clearly should be."
CUB also noted that, in the event that ABAC determined this to amount to a breach, it should be a "No Fault" breach.
On 8 December 2022, the panel issued its decision on the matter, and determined that the product was in breach of the ABAC Code, but that it should be regarded as a "No Fault" breach.
In making this determination, the panel noted, amongst other things, that, although there were age restriction controls in place (partly at the insistence of CUB), those restrictions are in effect muted where the accountholder accessing material is over the age of 18 and it is being co-viewed with a minor.
On that basis, rules 3 and 4 identified above by the Panel were critical. Rule 4 applies irrespective of the actual audience of a program and requires that alcohol ads not be placed with content primarily aimed at minors. While the Panel thought that the Ballet Video was not directed solely towards minors but to parents and dance teachers of child dancers as well as the dancers themselves, such that it wasn't a "children's entertainment program". given it was likely that the "reasonably expected" audience of the program would exceed 25% minors, the placement of the ad with the Ballet Video was a breach of Placement Rule 3. Accordingly, the Sungazer advertisement should not have been shown.
Having regard to CUB's insistence that the age restriction controls be used for the Sungazer campaign (their YouTube advertising buys were only served to people who signed in and indicated they are aged 18+, and all inappropriate categories, including content for children were actively excluded) such that the material was not appropriately tagged as being aimed at children, the breach did not arise through any fault on CUB's part. Accordingly, the advertisement was not served directly to a device, or a YouTube account held in the name of a minor and the breach was outside the control of the advertiser so a "No Fault" breach was found, and the complaint was dismissed.
That said, the Panel reiterated that a lack of intention to place an ad with inappropriate content does not of itself justify a no fault ruling as alcohol marketers must apply due and proper diligence as to best ensure their marketing is placed consistently with the ABAC obligations.