Dr. Alexandros Antoniou, Lecturer in Media Law, University of Essex
On 2 October 2019, the Advertising Standards Authority (ASA), the UK’s advertising watchdog, banned a promotional tweet on Burger King’s Twitter page on the grounds that it condoned anti-social behaviour.
In May 2019, a 32-year-old man launched a milkshake at Nigel Farage, the Brexit Party leader, as he campaigned in Newcastle ahead of the European elections. The man pleaded guilty to common assault and criminal damage at North Tyneside Magistrates’ Court and was ordered to pay compensation and carry out unpaid work. District Judge Bernard Begley was unimpressed by the claim that his act was a “right of protest” and called instead the incident an “act of crass stupidity”.
In response to this incident, an Edinburgh-based McDonald’s branch announced in May that it chose not to sell milkshakes while a Brexit political rally, addressed by Farage, was held nearby. However, Burger King’s approach was different. Shortly after the McDonald’s announcement, they tweeted:
Is ‘milkshaking’ becoming a habit?
The tweet, which was retweeted more than 19,000 times, attracted 24 complaints because it was believed to encourage violence. A follow-up tweet by Burger King made clear that this was not the intention behind it, stating that they would never endorse violence.
But ‘milkshaking’ appears to be emerging as a growing tactic in protest against right-wing political figures. ‘Milkshaking’ causes people to look profoundly embarrassed in front of the press, without however inflicting any substantial harm. In addition to suit cleaning costs, Farage was awarded compensation for inappropriate “distress and inconvenience”. He tweeted that normal campaigning was becoming impossible because some ‘remainers’ (i.e. individuals in favour of the UK remaining in the EU) had been “radicalised”.
The English Defence League (EDL) leader Tommy Robinson and the failed UKIP candidate Carl Benjamin also had food and milkshakes repeatedly thrown at them during their European election campaigns. ‘Milkshaking’ seems to be taking off on the other side of the Atlantic too. It was reported in June 2019 that a woman threw an unspecified drink over Matt Gaetz, a pro-Trump Republican Congressman, as he was leaving a coffee shop in Florida. She was later charged with battery and released on bail.
The ASA ruling
Because of the wide media coverage of a spate of incidents of ‘milkshaking’ political figures, the ASA (whose remit includes claims made by companies on their own websites and in social media spaces under their control) considered that people who read the tweet were likely to understand it as a reference to those incidents.
Although the regulator recognised that the tweet may have been intended as “a tongue in cheek reaction” to the suspension of milkshake sales by the fast food giant’s competitor, it held that:
“in the context in which it appeared […] it would be understood as suggesting that Burger King milkshakes could be used instead by people to ‘milkshake’ Nigel Farage.”
The ASA held that the ad condoned such anti-social behaviour and irresponsibly encouraged further instances in breach of the regulator’s harm and offence rules, which require advertisers to avoid including in their marketing communications material “likely to condone or encourage behaviour that prejudices health or safety” (CAP Code, Rule 4.4). The ASA ruled that the ad must not appear again in its current form.
As speculation over the prospect of an early general election after MPs returned to Parliament is mounting, and campaign events possibly nearing, the ASA’s adjudication usefully reminds us to drink milkshakes responsibly.