Company: Diaego Great Britain Limited
Final Decision: 28 January 2016
Considered under the 5th Edition of the Code.
‘This countertop unit is in breach of Section 3.2(f) of the Code in that it encourages “irresponsible or immoderate consumption”. The purpose of the countertop unit is to promote impulse purchases of alcohol. The CTU itself is labelled “DRIVE SALES WITH THIS COUNTER TOP UNIT”, and it is said that it “can be placed next to the till in store…increasing visibility to maximise the ‘impulse’ and fractional sales opportunity”. The purpose of the countertop unit is to promote impulse purchases of alcohol and the Press release itself is of interest in that it clearly states that purpose’.
The complainant cites the following two articles:
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
The company’s submission
The company began by stating that they firmly disagreed with the complainant’s view that the Baileys Press Release (PR) and Countertop Unit (CTU) were in breach of Code paragraph 3.2(f) or any other provisions of the Code. The company said that they do not consider the ‘impulse purchase’ concept to be problematic in the context of beverage alcohol products. They explained that ‘impulse’ purchases are a widely used method of driving sales in the convenience channel, which is sometimes referred to as the ‘impulse channel’ because consumers typically use convenience stores to make unplanned purchases. The company added that convenience stores often have restricted retail space available and that using the space next to counter was a key way of increasing sales, particularly on seasonal products that are not given permanent shelf space.
The company acknowledged that the purpose of the PR and CTU is to make the product more accessible to consumers thus increasing sales, but reject the complainant’s suggestion that encouraging and increasing sales of a product is to encourage irresponsible or immoderate consumption of that product. The company said that if a consumer makes an otherwise unplanned beverage alcohol purchase, it does not mean that consumer will then proceed to drink irresponsibly or immoderately. The Company referred to the 2014 case against Diageo Pre-Filled 20cl Counter-Top Unit. In this case the complainant used the same argument; that impulse purchasing would in turn encourage irresponsible or immoderate consumption. The Panel rejected this argument and did not find a link between the impulse purchasing concept and irresponsible or immoderate consumption.
Lastly the company said that the CTU and PR were not linked because an impulsive or unplanned purchase from the CTU is unrelated to irresponsible or immoderate consumption, and the PR did not contain any messages that would encourage consumers to drink irresponsibly or immoderately. The PR was intended only to advise retail customers how to use the CTU to increase sales of the product and was not consumer facing. Similarly, the text on the CTU “DRIVE SALES WITH THIS COUNTER TOP UNIT” would not be seen by a consumer because it appears on the tear-away lid of the CTU. The lid must be removed prior to the sale of the product for the product to be visible and accessible by consumers.
The Panel’s submission
The Panel first considered whether any aspect of the CTU or its design might encourage irresponsible or immoderate consumption. The Panel recognised that the CTU was intended to drive sales and encourage impulse purchasing but agreed with the company’s argument that to encourage impulse purchases did not equate to encouraging irresponsible or immoderate consumption. The Panel could not find a link between the impulse purchasing concept and irresponsible or immoderate consumption.
The Panel next discussed the text printed on the CTU; “DRIVE SALES WITH THIS COUNTER TOP UNIT”. The Panel recognised that this text would not be seen by consumers because it was printed on the tear away lid of the CTU and retailers must take this off to enable consumers to see, access and purchase the product. The Panel agreed with the company’s argument that the design of the CTU including the text printed on the lid did not encourage irresponsible or immoderate consumption.
The Panel went on to consider whether the PR encouraged irresponsible or immoderate consumption. The Panel agreed with the company’s argument that the PR did not contain any messages that might encourage consumers to drink irresponsibly or immoderately. Accordingly, the Panel concluded that that neither the CTU nor the PR, taken alone or in combination, were in breach of Code rule 3.2(f) or any other part of the Code.
Action by the company