5 September 2019
Considered under the 5th Edition of the Code.
“Went into my local waitrose in Caldicot Monmouthshie and was shocked to find that what I thought was fizzy drinks at the front of the store was alcohol cans of drink. It looks very appealing and bright they look like fizzy energy drinks also. Very clearly aimed at teenagers to encourage them to take up drinking. The store manager was very good… [redacted – relating to a different product], he said he would be in touch after he has spoken to his head office as he himself was worried that this would lead to underage drinking of alcohol drinks. This type of promotion should not be allowed to be displayed on these cans. Thanks for taking the time to read this”.
Member of the public
Under Code paragraph 3.1
The alcoholic nature of a drink should be communicated on its packaging with absolute clarity
Under Code paragraph 3.2(h)
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
The company’s submission
The company stated that it takes its responsibility as a producer seriously and that this was also reflected in its responses to complaints previously considered by the Independent Complaints Panel. The company expressed surprise that the complainant was ‘shocked’ that the product contained alcohol when it was clearly marked as an alcoholic beverage. The company explained that the product was labelled in accordance with best practice and adhered to industry standards for alcohol packaging, and specifically highlighted that the can:
• was marked as a product of Beavertown ‘Brewery’;
• stated ‘IPA’ in a bold font on the front of the can and ‘Pale Ale’ on the back of the can;
• displayed the ABV and UK units in a way approved by Campden BRI’s packaging check service;
• displayed a link to Drinkaware.co.uk in line with both Portman Group and Campden BRI’s advice.
After investigation, the company stated that it believed the promotion referred to in the complaint was part of the cross-category Waitrose Summer BBQ event. The company explained that this event contained twelve different alcohol lines alongside various BBQ-related products such as condiments, crisps, other snacks and charcoal. This event placed Beavertown beers alongside well known alcohol brands such as Estrella, Peroni and Koppaberg but the display did not feature any ‘energy drinks’. The company stated that there was no reason for the beer display to be mistaken for anything other than beer, and that the display would not have disguised the alcoholic nature of the products displayed as part of the event. The company highlighted that there was only one complaint, which it believed was relevant given Waitrose’s large footfall of customers. The company also highlighted that the comments attributed to the store manager were not about Bloody ‘Ell directly. The company noted that the complainant raised concerns pertinent to the nature of the Waitrose display and stated that these should be considered in the wider context that Waitrose has well-known ethical standards, as do all the supermarkets that stock Beavertown products. The company suggested that questions regarding the promotion should be directed at Waitrose, and that the words and actions of the store manager were beyond their control.
The company stated that in their view the complaint contained an emotive and unreasonable argument and could see no way the product could be mistaken for an energy drink. The company also stated that the claim the product was ‘very clearly aimed at teenagers’ was misguided and ill-informed about what appealed to teenagers and that the complainant’s comments were without foundation and reflected a narrow personal prejudice.
The company stated that it believed the substance of the ‘colour’ complaint had been dealt with in previous Panel decisions regarding Gamma Ray and Neck Oil. The company rejected the claim that Bloody ‘Ell was aimed at teenagers and explained that its design and labelling was in line with its well-known branding intended for people of legal drinking age.
The company included an appendix with its response, which explained that it regularly reviews the distinctive and award-winning graphic designs used on its beers. The company also rejected the notion that it encouraged anyone to ‘take up’ drinking and believed this stemmed from unfamiliarity with the brand.
The company stated that people who purchased Beavertown ales made a positive choice based upon the established brand. The company explained that the colour palette used followed the corporate and well-established company brand and was not designed to appeal to teens, tweens, youths or an irresponsible beer-drinking demographic. The company explained that the colours used were tonal and related solely to the main ingredient of the beer; blood orange.
The company quoted the final decisions made by the Panel for Gamma Ray and Neck Oil and highlighted the reasoning used for both:
“…importance on the levels of luminance and contrast between the colours. The panel concluded that the contrast between the colours were not strong and therefore on a basis of colour, the packaging would not have a particular appeal to under 18s.” (Gamma Ray)
“…the colour palette and illustrations on the can design and noted that muted, instead of contrasting, colours had been used and that the artwork was sophisticated, and adult in nature.” (Neck Oil)
The company explained that it deliberately supplied its beers through the specialist craft beer network and ethical supermarkets such as Waitrose to demonstrate their commitment to social responsibility.
The company also highlighted that energy drinks are sold, almost exclusively, in large 500ml ‘tallboy’ cans or in skinny variants of 330ml or 200ml cans like ‘Red Bull’. The company stated that it hoped this would be considered when the Panel considered the claim that Bloody ‘Ell looked like a ‘fizzy energy drink’. In addition to this point, the company stated that the product made no reference to ‘energy’ or mental state anywhere on the can and instead directed consumers to Drinkaware. The company stated that the above was a moot point however as no person under the age of 18 could purchase the drink in the stores it was available to purchase in as age identification would be required as part of the ‘Challenge 25’ scheme employed by such retailers.
The company stated the design and information about the beer was all in one panel of view and that a consumer could not look at the design without seeing ‘Blood Orange IPA’. The company explained that the information was also displayed on the back alongside the legally compliant alcohol information and that however the can was displayed it was clearly labelled as beer. The company concluded by stating that, by their own admission, the complainant read the information provided on the can and realised that the product was alcoholic.
The Panel’s assessment
The Panel considered how the alcoholic nature of the product was presented on the product packaging and noted that the front label only featured the alcoholic signifier ‘IPA’ which was presented in white text and overlapped at points with a metallic silver background, making it hard to read unless in good light. The Panel discussed whether the majority of consumers would be as familiar with the term ‘IPA’ as they were with ‘India Pale Ale’ and also noted that, unlike the back label, ‘Beavertown’ appeared without the word ‘Brewery’ after it. The Panel went on to consider the overall impression conveyed by the product and noted that the back label contained several indicators of the products’ alcoholic nature, namely the word ‘IPA’, ‘Beavertown Brewery’, the products’ ABV, a pregnancy warning, the units per container and signposting to Drinkaware. The Panel did not consider the can to be similar to an energy drink. The Panel agreed that, when considered only from the front of the can, the product lacked clarity under Code Rule 3.1, and believed that the front label could work harder to communicate its alcoholic nature by ideally including the descriptor ‘India Pale Ale’ and the word ‘Brewery’ after ‘Beavertown’. However, when taken in the round, the Panel agreed that the product was compliant with EU and UK labelling regulations and also noted that the complainant had identified the alcoholic nature of the product upon closer inspection of the can. On this basis, the Panel concluded that the product could not be considered to have breached Code Rule 3.1 and accordingly did not uphold the product under this Code Rule.
Finally, the Panel considered whether the product had a particular appeal to under-18s. The Panel noted that the illustration on the front of the can was adult in design and that the product did not use contrasting colours. The Panel concluded that there was no element of the can design that had a particular appeal to under-18s and accordingly did not uphold the product under Code Rule 3.2(h).
Action by Company