Producer
Sazerac UK Limited
Complaint
“The product was launched in part through a travelling ice cream van called the “99 Liquor Whip”, painted in the yellow, red, white and blue colour scheme of a traditional UK ice cream van and bearing a large ice cream cone on the roof, unmistakably evoking childhood. The van dispensed soft-serve ice cream infused with the shots. The name “99” directly evokes a “99 Flake” ice cream, one of the most culturally recognisable symbols of British childhood. The van’s side panels featured sticker-style graphics including cartoon eyes and dots and the kind of cluttered, playful visual language found on children’s stationery and sweet packaging.
The use of an ice cream van as a vehicle for marketing an alcoholic product is not, as Sazerac has claimed, a “nostalgia” reference aimed at adults; it is a direct appeal to imagery and associations that are, first and foremost, childhood associations. The Portman Group’s own guidance notes that packaging and promotions that mimic or reference products primarily associated with children are likely to be in breach of 3.2(h). This activation goes further than packaging; it physically replicates a childhood product experience as an introduction to an alcoholic one.
Tellingly, the van displayed signage reading “SHOTS 18+ ONLY”. The fact that Sazerac felt it necessary to add an explicit age disclaimer to what was presented as an ice cream van experience is an implicit acknowledgement that the format would otherwise be ambiguous about its intended audience and that the risk of appeal to under-18s was recognised by the company itself.
The 99 name and branding
The product name “99” is inseparable from its ice cream van context. It does not carry an adult cultural reference in the way that, say, “1664” or “Jack Daniel’s” might. Its primary cultural resonance in the UK is a children’s treat. Combined with the activation, the name compounds rather than mitigates the appeal to under-18s.
Professional and expert opinion
These concerns are corroborated by professionals and recognised experts with direct experience of the teenagers most at risk, as follows:
Cathy Walker, an education and parenting consultant with more than 20 years’ experience working in schools, said: “These products have been designed in a way that will inevitably appeal to kids with bright colours and a super cheap price tag.” (The Times, May 15)
Harriet Rye, mental health lead at Calderstones School, one of the largest secondary schools in Liverpool, observed: “Those bottles look incredibly enticing, and at pocket money prices. Just the kind of thing that would appeal to the teens I work with.” (The Times, May 15). Ms Rye’s observation is particularly significant as it reflects frontline professional experience of how this product lands with actual secondary school-age teenagers.
Jem Roberts, head of external affairs at the Institute of Alcohol Studies, described the launch as looking “like a product entirely designed to appeal to children while hiding behind a thin ‘nostalgia’ label”, adding: “Sweet flavours, TikTok-style branding, and even an ice-cream van — it’s hardly subtle.” His characterisation of the nostalgia framing as thin is directly relevant to the likely defence Sazerac will advance, and reflects the view of an independent research body that the cumulative effect of these design choices is not accidental. (The Guardian, May 24)
Joe Marley, executive director at Alcohol Change UK, noted that Sazerac has “a track record of going further than others when creating and marketing strong alcohol that tastes like sweets for pocket money prices, using playful approaches, bright colours and cultural trends to embed alcohol in young people’s lives.” He also raised concern about “colourful advertisements in high footfall public spaces such as bus stops and high streets” that risk appealing to children – a dimension of the marketing beyond the campus activation that the Panel may wish to consider. (The Guardian, May 24)”.
Complainant
Member of the public
Decision
A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s.
UPHELD
The company’s submission
The company stated that ‘99’ was a heritage brand which was well established in the US market and was a family-owned business with 400 years of experience. The business operated on strong cultural foundations of integrity, trust, ethics and values and as a responsible producer it sought to comply with all legal and regulatory requirements in the market. The company explained that the ice-cream van promotional activity was a one-off event designed with an adult audience in mind and was operated at two carefully selected university sites. The company added that the design, operation and safeguarding measures ensured the event did not have a particular appeal to under-18s.
The company stated that the promotional activity was an adult-only interpretation of a traditional ice-cream van designed to appeal to late1990s and early 2000s nostalgia which was popular amongst Gen Z. The locations chosen were university sites and nearly all UK university students were over 18 and so the majority of the audience was adult. The company stated that one of the sites was near to a pub which emphasised the adult nature of the promotional activity. The company explained that the promotional activity involved serving complimentary soft serve ice-cream with 99 drink samples to be consumed on site. There were no items given away to be taken home and so were not viewed by a wider audience.
The company stated that even if the promotional activity was viewed by a wider audience it had taken steps to ensure it did not have a particular appeal to under-18s in line with Portman Group 3.2(h) guidance. The company explained that the ice-cream van had a pared back design and did not use cartoon characters as contemporary ice-cream vans would and instead the predominant imagery related to alcoholic beverages. The company rejected that ‘emoji’ style images would appeal to under-18s and referred to previous Panel precedent which stated ‘emojis’ had broad appeal. The company explained that the event featured a performance of a 2002 hit song ‘Just the Way You Are’ by Milky which reinforced the nostalgic appeal of the event. Furthermore, the company did not believe the band or song had a particular appeal to under-18s.
The company explained that additional precautions had been undertaken to ensure that the promotional activity had an adult appeal. The ice cream van contained numerous indicators that it was dispensing alcohol and there was signage which contained positive alcohol cues and responsibility messaging. A Challenge 25 policy had been adopted for service and there were also age checks in place. Further instructions to staff had also been provided to not serve any person who appeared intoxicated. The relevant event planning application had also been granted by the governing council. The company disagreed that the precautions employed suggested that the activity would otherwise have an ambiguous target audience age. The company stated that the promotion was intended to appeal to an adult demographic and did not have a particular appeal to under-18s. Nevertheless, the company confirmed it was a singular promotional activity and had no plans to repeat it.
The Panel’s assessment
The Panel discussed whether the 99 Liqueur Ice Cream Van Promotional Activity could have a particular appeal to under-18s as raised by the complainant. The Panel noted the company’s response that the promotional activity took place at two sites that were chosen as they were part of a university campus in Birmingham, one of which was opposite a licensed premise student union pub. The Panel noted that while the location of the promotional activity formed part of the university, it was situated in Birmingham city centre. The Panel considered that it was therefore reasonable to assume that a wider audience would be exposed to the marketing which could include those under-18, regardless of whether they were able to participate. The Panel referred to accompanying guidance to Code rule 3.2(h) and reminded producers that age-gating an event did not ensure compliance as a promotional activity could still have a particular appeal to under-18s in and of itself.
The Panel assessed the promotional activity which involved an ice-cream van dispensing a soft whip ice-cream infused with a ’99 liqueur’ drink. The Panel considered that ice-cream vans were typically brightly coloured commercial vehicles which drove around neighbourhoods, or parked in a static location, to sell ice-creams which most prominently included the soft serve ‘whippy’ with a flake. The Panel discussed the presentation of a typical ice-cream van and its accompanying signal which would usually play a loud, musical tune to alert local children to its presence. The Panel considered these functions were intentional features, chosen to highly resonate with children who would find the bright colours, playful music and sweet confectionery nature of ice-cream extremely enticing. The Panel noted previous related ice-cream precedent and noted that while ice-cream in broad terms would have appeal to all ages, an ice-cream van remained a popular staple of current childhood.
The Panel then discussed the presentation of the vehicle used in the promotional activity and noted that it strongly resembled a traditional ice-cream van. The Panel noted that the vehicle was a classic transit van which was also used for traditional ice-cream vans, with ‘99’ or ‘ninety nine’ on all sides of the vehicle with large novelty ice-cream cones displayed on the front. The Panel acknowledged that ‘99’ was the name of the drink but nevertheless in the context of a soft serve ice-cream van, ‘99’ further enhanced the resemblance and link to an ice-cream van aimed at children. The Panel noted that the majority of the van was a primary colour, yellow, which had a high level of contrast against the blue star, pink and red stripes that circled the vehicle. One side of the van had a serving hatch which included images of the different flavoured drinks which were presented in a ‘menu’ style. The Panel considered that this feature increased the similarity between the promotional activity and traditional ice-cream vans which would similarly display the different menu items as visual images that were easy for children to understand. When assessing the rest of the van, the Panel noted that it included text and images which had thick bold key lines and bright colours all of which would contribute to a high level of appeal to under-18s. The Panel considered that the van also used a ‘sticker’ style artwork which included fruit, swirls, stars, crosses, lightning bolts and retro ice-cream cone artwork which was stuck on in a haphazard way and reinforced a playful and youthful tone. While the van included several references to alcohol such as ‘liquor whip’, ‘adults only’, ‘flavour shots’ and ‘18+’, the Panel considered that such messages were not enough to offset the overwhelming similarity to a traditional ice-cream van. The Panel sought to remind all producers that the inclusion of an ‘18+’ logo would not on its own counteract the particular appeal that a promotional activity, or packaging, would have when the overall impression was assessed under the Code.
The Panel noted the company’s response that the promotional activity was intended to invoke nostalgia from the late 1990s and early 2000s with the adult Gen Z demographic. However, the Panel considered that while adults may have a level of nostalgia from their own childhoods, ice-cream vans remained popular with children today and by their nature had an inherent link with childhood. The Panel stated that it was wholly inappropriate to link any alcoholic drink with childhood even in circumstances where an age-gate was in place. Taking all the points above into account, the Panel found that the promotional activity would have a particular appeal to under-18s and accordingly the complaint was upheld under Code rule 3.2(h).
Action by Company
The company confirmed it would not run the promotional activity in the same form again.