Over the 30 Years of the Code of Practice, industry innovations and consumer trends have continuously evolved and so with it, the Code itself. The Code is now in its sixth edition and the guidance that sits behind it is regularly updated to support the present market. Followers of this blog series will remember that the introduction of the Code in 1996 is often linked to the rise of alco-pops in the 90s. Today’s case from 2015 shines a spotlight on the explosion of craft beer onto the market, the way it transformed the traditional image of canned beers and how these developments were reflected in case precedents that still have a bearing today.
By 2014 the traditional beer market saw a boom in craft beers and microbreweries and with it brought a variety of new flavours, innovative brewing techniques and unique label designs. The first case from this wave to be considered by the Independent Complaints Panel (Panel) was Gamma Ray in 2015 which featured a fantastical space theme with skeletons in space suits firing ray guns surrounded by flying spacecraft. The style of the artwork resembled a graphic cartoon or arcade game illustration and the can itself was a 330ml size. Key to this case was the fact that, in 2015, cans of this size were typically used for soft drinks such as cola and lemonade, whereas beer, ale and lager were generally sold in 440ml or 500ml cans. Traditionally, such cans were often minimalistic in design with one or two tone colour schemes, straight-line fonts and a typically mature appearance. The complainant in this case, a member of the public, raised concerns that presenting alcohol in a colourful can the same size as a soft drink, could lead to consumer confusion and encourage young people to drink alcohol.
During the Gamma Ray investigation, the Panel discussed how the size of the can was considered novel at the time. Novel packaging has been a recurring theme in case decisions and, over the years, examples have become incredibly varied. We have seen novel in the sense of novelty, with producers wanting to stand out from the crowd. This has resulted in everything from sperm shaped containers to light up snow globes and gun shaped bottles. While other cases have concerned packaging that is novel because it reflects new advances in manufacturing and development. Gamma Ray was the first case at this time where the Panel had to consider the change in traditional can sizes and today, we see this reflected in the ready-to-drink category where we are seeing a rise in Tetra Paks and novel containers. In both situations, two issues tend to arise, one being whether the packaging makes the alcoholic nature of the drink absolutely clear and the second whether the novel nature of the packaging creates or contributes to a particular appeal to under-18s.
In the case of Gamma Ray, the Panel noted prominent positive alcohol cues which they were satisfied made the alcoholic nature of the drink absolutely clear. After extensive debate regarding the illustrative design, the Panel considered that, the macabre nature of the design, muted colours and nostalgic appeal of the artwork meant that, on balance, it did not have a particular appeal to under-18s in 2015.
The Gamma Ray decision was precedent setting at a time when not just the packaging size, but also the creative design was completely novel and the category changed the visible appearance of alcohol aisles over the course of the next few years.
Support on minimising the risk of particular appeal to under-18s, is consistently one of the most requested topics in the Advisory Service. The corresponding Code rule has also attracted the most complaints since the Code was introduced in 1996. Together, these trends suggest that protecting under-18s is a shared priority for the Portman Group, the alcohol industry and members of the public. In 2023, the Portman Group and the Independent Complaints Panel commissioned children’s marketing agency, Kids Industries, to provide insights on marketing techniques used to appeal to children and teenagers outside of the alcohol industry. This year, Kids Industries have updated their report to provide new insights into a constantly evolving area of marketing and this will shortly lead to a new update on guidance for Code rule 3.2(h). The guidance is due to be published soon, so watch this space for details and in the meantime do not hesitate to reach out to the Advisory Service for a quick and confidential view.