C & C Group Plc
‘This product is incredibly high strength, served in a non-resealable can and is not designed to be shared. I would argue that it is impossible to drink it responsibly as each one contains more than a mans recommended daily allowance and twice as much as a woman's in each 500ml serving.
The fact that it is served in cans means that once opened they must be consumed or rapidly lose quality of taste etc. This encourages people to drink the entire can in one serving or have their consumer rights impinged.’
Portsmouth City Council (Health, Community Safety, Licensing Team)
Under Code paragraph 3.2(f):
A drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness
Under Code paragraph 3.2(g):
A drink, its packaging and any promotional material or activity should not in any direct or indirect way urge the consumer to drink rapidly or to ‘down’ a product in one
The company’s submissions
The company said that it was clear from the examples and preceding language that immoderate or irresponsible consumption in rule 3.2(f) refers only to serious overindulgence such as drink driving, binge–drinking or drunkenness. The consumption of 4.2 units of alcohol in one sitting cannot be considered to be immoderate or irresponsible.
The company stated that the complainant was incorrect in referring to the Government guidelines (UK Chief Medical Officers’ (CMOs’ guidelines) as a recommended daily allowance. The company noted that the guidelines did not state that men must not exceed 3-4 units in one day but rather that men should not regularly exceed 3-4 units in one day, "regularly" being every day or most days of the week. The company also noted that regardless of how the Government guidelines are to be interpreted they are only guidelines and not law. In any event, subsequent to the complaint (in May 2015) and the Panel’s initial decision in this matter (in December 2015), the CMOs had proposed (in January 2016) and subsequently adopted (in August 2016) new Low Risk Drinking Guidelines for men and women which did not specify any daily guidelines for single drinking episodes.
The company stated that the linkage of problem drinkers and consuming single serve products containing more than 4 units of alcohol is nonsensical and lacking any evidential base. The company said that Local Authorities’ generalised views on products consumed by problem drinkers are not relevant as to whether a product encourages problem drinking and in turn breaches the Code. On that basis, consuming two pints of lager or two people sharing a bottle of wine could also be defined as problem drinking. The company also believed that applying a 4 unit threshold to cans but not to other containers such as beer bottles with crown cap, resealable bottles of cheap vodka and bottles of prosecco is discriminatory and irrational.
The company acknowledged that alcohol misuse was a problem, but said that the widespread availability of strong cheap alcohol, including wine and spirits, was the biggest problem, for which the solution was minimum pricing. It said that it had a thorough corporate social responsibility programme, and it did not have any white cider products (a category commonly associated with problem drinking), having divested itself of such products. K Cider 500ml typically contains 70% apple juice, and its alcoholic strength is the level to which strong natural cider ferments. The company stated that the product was a premium product, evidenced by its minimal branding, the iconic red K as an enduring mark of quality and its pricing on the market. Whilst, as with any alcoholic product, there is the potential for misuse, K Cider 500ml is not intended for regular or binge drinking, and the company did not believe that was how it was drunk.
The company also addressed the complaint under rule 3.2(g) and stated that it would be nonsensical to suggest that the packaging of a product in a 500ml non-resealable can would urge a consumer to drink rapidly or to ‘down a product in one’. The company contended that it was clear from past Panel decisions (ShotPak and Rampant TT’s) and Portman Group guidance that the rule is intended to apply to the marketing of shot-style drinks, not cans. The company stated that there was nothing in the design, marketing or packaging that would in any way suggest the consumer should drink rapidly or ‘down the product in one’. If this were the case, no beer or cider could be packaged in a can.
The Panel’s assessment
The Panel noted that one can of 500ml K Cider at 8.4% ABV contained 4.2 units of alcohol which is 0.2 units above 4 units (a benchmark which the Panel had applied in certain of its previous decisions when considering whether or not the packing of a product in a non-resealable drinks can encouraged “immoderate” consumption). It noted that Portsmouth City Council’s concern could be seen as being, from a policy perspective, consistent with the introduction by many Local Authorities of schemes to remove from the shelves of supermarkets and convenience stores strong beers and strong ciders (categorised by those authorities as being above 6.5% ABV) because they were perceived by those authorities to be disproportionately consumed by problem drinkers, including street drinkers in their areas.
The Panel considered how the Code should be interpreted; in particular, the meanings of “immoderate” and “irresponsible” consumption. The Panel agreed that the Code is principles based and for that reason immoderate and irresponsible consumption is not precisely defined within it. Accordingly, in interpreting the Code, the Panel must apply those terms in a common sense way, doing so in the light of all factors that it considers relevant to the circumstances of each case. The Panel is also entitled to take account of current attitudes and norms, including any relevant Government and other reputable sources of guidance about the parameters of moderate drinking. Ultimately, however, it is for the Panel to make its own assessment as to what those parameters are, and whether or not the packaging of a particular product encourages (whether directly or indirectly) the exceeding of those parameters. Whilst paragraph 3.2(f) provides “drink-driving” and “binge-drinking” as specific examples of immoderate or irresponsible drinking, the Panel does not agree that drinking can necessarily be regarded as moderate (i.e. as not being “immoderate”) simply because it does not constitute binge-drinking or involve drinking prior to driving a vehicle.
When addressing whether or not a particular amount of alcohol consumption should be regarded as immoderate, one of the reference points to which it was proper for the Panel to have regard was the CMOs’ guidelines of 2016. The Panel agreed with the company’s submission that the CMOs’ guidelines were not equivalent to legislation. Nevertheless, the guidelines come from an authoritative source and it is right that the Panel has regard to them as a source of guidance and insight. The Panel noted that the complaint was based on the CMOs’ 1995 guidelines, which had been superseded. The new 2016 Low Risk Drinking Guidelines stated that “To keep health risks from alcohol to a low level it is safest not to drink more than 14 units a week on a regular basis. If you regularly drink as much as 14 units per week, it is best to spread your drinking evenly over 3 or more days. If you have one or two heavy drinking episodes a week, you increase your risks of death from long term illness and from accidents and injuries ….”. In relation to single occasion drinking episodes the Guidelines specified no limit, but stated more generally that “The Chief Medical Officers’ advice for men and women who wish to keep their short term health risks from single occasion drinking episodes to a low level is to reduce them by: limiting the total amount of alcohol you drink on any single occasion; drinking more slowly, drinking with food, and alternating with water; …”. The expert Guidelines Development Group which advised the CMOs had recommended against a daily guideline because most people do not drink every day, because the differences in short term risks faced by different people drinking the same amount can be so wide, and because the actual risk faced by any particular person can also be substantially altered by a number of factors, including how fast they drink, prior knowledge about how alcohol tends to affect their skills and inhibitions, how safe their environment is, and any plans they have made in advance to reduce their risks (such as staying around someone they can trust and planning safe transport home).
The Panel noted that research which it had commissioned from YouGov in previous cases showed that non-resealable cans were likely to be consumed by one person on a single drinking occasion, rather than shared or saved for another occasion. It considered that the evidence for K Cider 8.4% 500ml can variant being marketed as a “premium product” sold at a premium price point was weak, and noted that it was sold through the independent impulse channel - convenience stores, rather than supermarkets and specialist off licenses.
The Panel was of the view that cans of K Cider are likely to be viewed by consumers as an option for regular day-to-day consumption, and that the sale of the product in non‑resealable 500ml cans containing more than 4 units of alcohol is likely to lead to consumers drinking more than 4 units of alcohol on a single drinking occasion. However, the Panel noted that the current CMOs’ guidelines did not put forward a daily or single occasion drinking guideline, and the Panel could not infer from the evidence presented to the CMOs by the Guidelines Development Group that 4.2 units on a single occasion was an immoderate (whether because of increased risk to health or safety or otherwise) level of drinking. The Panel had not seen evidence regarding the extent to which a can of K Cider 500ml was drunk by consumers more than 3 times a week, such as to place drinkers in breach of the recommendation in the CMOs’ new weekly guideline. The Panel therefore concluded that there was insufficient evidence to find a breach of Code paragraph 3.2(f). Accordingly, the complaint is not upheld under Code paragraph 3.2(f).
The Panel could not see anything on the packaging that would encourage a consumer to drink rapidly or to ‘down’ a product in one. Accordingly, the Panel did not uphold the product under Code paragraph 3.2(g).