‘‘Children may not make the association with alcoholic drinks (especially at 13.5%) in the same way that they will with the other ones that have more established cocktail names…At least put alcoholic cocktail on these products.
It looks like a toy, by design and how it is marketed. It is easy to put in a pocket or bag and not as noticeable as an alcoholic beverage as a bottle. The names appear to be childish with bright colours and it is marketed as something to play with – perfect for the pool and beaches. All are brightly coloured and there to attract young people.’’
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(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
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
Under Code paragraph 3.2(j)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that the product has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour.
The company’s submission
The company acknowledged that the Panel was not bound to restrict consideration of the products to the narrow terms of the complaint but explained that the focus of its response would be to address the complainants’ concerns.
The company stated that it was a responsible, innovative alcohol producer which sought from inception to comprehensively comply with all legal and industry requirements in multiple jurisdictions. Furthermore, the company maintained that when all evidence was considered, a breach of the Code had not occurred.
The company explained the name BuzzBallz, related to the nickname of the founder who had been a fast track and field athlete and would ‘buzz’ past competitors. The company clarified that ‘Ballz’ related to the round nature of the plastic container, which was inspired by a snowball candle, and designed to be a safe way for consumers to enjoy cocktails as opposed to traditional glassware. The company maintained that the innovative packaging shape was part of the brand identity and was marketed at those of a legal drinking age. Furthermore, the company highlighted that the brand had expanded globally from the US and had not received any other complaints about its products, of which it had sold over 5 million SKU’s.
The company explained that it was a member of the Distilled Spirits Council Of The United States (DISCUS) which administered a Code of Responsible Practices for Beverage Alcohol Advertising and Marketing that members were required to voluntarily abide by. The DISCUS Code had minimum requirements which were substantially similar to the Portman Group Code of Practice, and the company maintained it had complied with these requirements. This included DISCUS conducting a review of the company’s historic marketing which it found to be compliant.
Explaining the packaging of the drinks, the company confirmed the containers were made of plastic and were opened via a stay-on ring pull. The colour of the plastic was chosen to match the liquid colour and provided protection against UV deterioration. Where this was not aesthetically pleasing, a clear plastic was used. The company confirmed that no illustrations were used in the packaging design, and it included a maximum of two colours; the colour of the packaging and a contrasting colour for the text, all of which, were intended to appeal to adults.
The company stated that it marketed its products in the UK to an adult audience, through social media channels such as Facebook or Instagram. The company had chosen these channels because of their age-gating functions to ensure the adverts were targeted at an adult audience. Furthermore, the campaigns only used images of those who were, and looked as if they were, over 25 years old. Wider marketing of the products was conducted in licensed public houses where only those over 18 could purchase alcohol. The company highlighted its own UK website included age verification checks.
The company noted that there were a number of comparable drinks in the UK market.
The company understood that the Panel was the final arbiter of the Code of Practice. When preparing the response to the complaint the company had reviewed similar Panel decisions and Portman Group guidance which related to Code rules 3.1 and 3.2(h). The company highlighted several principles for each rule which resulted in previous cases being upheld by the Panel. The company sought to apply these principles to BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango to demonstrate compliance.
The company addressed the complaint under Code rule 3.1, and noted the complaint stated that under-18s would not recognise the drinks as alcoholic. The company explained the packaging contained numerous positive alcohol indicators which included:
- The ABV stated as ‘ALC. 13.5% VOL’ which was included twice on the packaging;
- The front of the packaging stated ‘Cocktail’ in large script to stand out from other text;
- Text on the back of the packaging included ‘mixed drink with alcohol’ and ingredients including vodka and tequila, and a ‘please drink responsibly’ message.
The company noted that cocktails were likely to be understood by UK consumers as denoting an alcoholic drink, which was consistent with the Panel’s decision regarding HappyDown in 2018. Furthermore, the text of all packaging was prominent and clearly legible with a minimum of two alcoholic descriptors visible from the front field of view, and a minimum of six on the back.
Addressing the novel shape and design of the containers, the company stated it did not believe this was enough to breach the Code.
Referring to a Panel decision regarding Celldrinks, which also had a novel packaging design, the company understood that such containers may need to work harder to communicate the alcoholic content. Furthermore, it noted novel containers for alcoholic drinks were not unusual in the UK market and the shape of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango was not similar to either alcoholic or non-alcoholic beverages. Thus, consumers would be unlikely to confuse it with a similar non-alcoholic counterpart.
The company confirmed that the packaging designs employed only a single bright colour and did not have a busy overall design. The ingredients such as strawberry, chili, mango and chocolate were used in both alcoholic and non-alcoholic drinks.
When considering the elements in isolation, or in combination, the company maintained there were not sufficient detractors to cause consumer confusion regarding the drinks’ alcoholic nature. As the packaging included numerous positive alcohol cues, and did not include imagery or illustrations, the company concluded the alcoholic nature of the drinks was communicated on the labels with absolute clarity.
The company then addressed the complainant’s concerns that BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango had particular appeal to under-18s, focusing on isolated elements and the overall impression of the packaging. The company reiterated that the drinks were marketed to an adult audience.
The company refuted the complainant’s assertation that the container was toylike. The company explained that the shape was round but included a flat bottom and top to serve as a receptable for liquid. It did not appear similar to any known children’s toy to the company’s knowledge and at most could be compared to a ball. The company maintained that balls had a variety of purposes and had broad appeal to children and adults.
The company noted the size of the container was consistent with other single serve products such as wine or other ready-to-drink alcoholic beverages. BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango contained 200ml of liquid which was required to comply with mandated standards of fill in the USA for distilled spirits. While the company agreed that the products could be easily transported in a bag or cooler, this was not an element which could have a particular appeal to children. Furthermore, while the packaging design and shape were novel, it was not reminiscent of a soft drink which was popular with children, therefore it was unlikely to have a particular appeal to under-18s.
The company explained that Strawberry ‘Rita was a shortening for strawberry margarita, Chili Mango was descriptive of the product and the flavour would likely appeal to adults The company also clarified that Choc Tease was intended to convey the indulgent creamy nature of the drink with chocolate having broad appeal to both children and adults.
While the packaging for the drinks did employ bright colours, the company stated it was adult in nature and included sharp stark uniform fonts, a limited colour palette and did not include multiple contrasting colours or childlike cartoons or illustrations. The company noted that two previous Panel decisions about HappyDown and Hoola Hooch clarified that inclusion of bright colours on packaging was not inherently a breach of the Code and would be considered broadly in the context of the overall impression of the label.
Finally, the company stated that the wider marketing of the drinks did not have particular appeal to under-18’s. The UK website included information that the product could be enjoyed at various locations. However, it did not suggest it could, or should, be used as a plaything but rather due to its plastic container, the drinks would be safe to enjoy where people were likely to be bare foot.
The Panel’s assessment
The Panel began by discussing whether any additional Code paragraphs should be considered. The Panel noted that the container utilised a novel design, was small, transportable and not easily resealed and agreed there was merit in discussing the three products under Code paragraph 3.2(g) to determine if the packaging encouraged rapid consumption. The Panel also agreed to discuss the products under Code paragraph 3.2(j) to determine whether the word ‘buzz’ suggested that the products could change a consumer’s mood or behaviour.
Code rule 3.1
The Panel discussed whether the packaging of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango communicated the alcoholic nature of the products with absolute clarity. The Panel noted that while the container itself was small and ball shaped, and not a typical alcoholic drink vessel, the packaging did include some positive alcohol cues to communicate the drinks alcoholic nature. The Panel noted that the packaging included the alcoholic strength by volume of 13.5% (ABV), a ‘drink responsibly’ message and the word ‘cocktail’. When reviewing the packaging, the Panel discussed whether the descriptor ‘cocktail’ was likely to be understood by consumers as an alcoholic signifier. When considering non-alcoholic versions of popular cocktails, the Panel acknowledged that they were commonly referred to as ‘non-alcoholic cocktails’ or ‘mocktails’ to distinguish them from ‘cocktails’. Therefore, the Panel determined that most consumers would likely interpret ‘cocktail’ as a reference to a drink containing alcohol.
The Panel discussed previous case precedents raised by the company and noted that novel containers sometimes did need to work harder to communicate the alcoholic nature of the contents to consumers. However, the Panel concluded that the packaging of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango did contain the minimum amount of information, including the product ABV and word ‘cocktails’, to communicate the drinks alcoholic nature with absolute clarity. Accordingly, the Panel did not uphold the complaint under Code paragraph 3.1. Whilst the Panel did not uphold the complaint under Code paragraph 3.1, it noted that the unusual, innovative, packaging style could do more at a best practice level to ensure that it was immediately obvious the product was alcoholic in nature and encouraged the company to review this.
Code rule 3.2(h)
The Panel discussed whether the packaging could have a particular appeal to under-18s. When considering the small size and shape of the containers, the Panel noted that they were reminiscent of balls used in games such as snooker, cricket or tennis. The Panel discussed BuzzBallz Strawberry ‘Rita and noted that the red shiny packaging was also similar to a Christmas bauble. When examining whether these elements could have particular appeal to under-18s, the Panel concluded that snooker, cricket, tennis and Christmas baubles were likely to have broad appeal across all age groups and that the similarity was passing, as opposed to identical.
The Panel noted that BuzzBallz Strawberry ‘Rita and BuzzBallz Chili and Mango both employed primary colours, red and yellow respectively. However, the Panel acknowledged that while the packaging was bright in colour, it did not contain contrasting colours with varying levels of luminance, sparkles or cartoon imagery which could create a cumulative effect that may particularly appeal to under-18s.
When considering these elements both in isolation, and in combination, the Panel concluded that there was nothing on the packaging, or in the product’s overall design, that was likely to have a particular appeal to under-18s. Accordingly, the complaint was not upheld under Code rule 3.2(h).
Code rule 3.2(g)
The Panel considered whether the packaging design could encourage a consumer to drink the product rapidly or ‘down’ it in one. The Panel discussed previous cases with novel packaging such as ‘test tube drinks’ and noted that such containers could not be resealed or set down, thus indirectly encouraging rapid consumption as the consumer was required to drink the product quickly and immediately. When considering BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango, the Panel noted that all three had flat bottoms which meant they could be easily set down. Alongside this, there were no elements on the packaging that suggested a consumer should either drink the product rapidly or ‘down’ it in one. Accordingly, BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango were not found in breach of Code paragraph 3.2(g).
Code rule 3.2(j)
Finally, the Panel reviewed the name ‘BuzzBallz’ and whether the word ‘buzz’ suggested that it could change a consumer’s mood or behaviour. The Panel acknowledged that the definition of ‘buzz’ referred to the slight intoxication from consuming alcohol or drugs and discussed whether there was a suggestion that the product could change a consumer’s mood or behaviour. The Panel considered that a ‘buzz’ could refer to being excited but in areas of the US and the UK was colloquially sometimes used to reference the feeling of being slightly intoxicated or ‘buzzed’. When reviewing the rest of the packaging, the Panel noted that there was nothing on the products’ which suggested the drink could change a consumer’s mood or behaviour or that consumption would generate a ‘buzz’. After much discussion, the Panel considered that ‘buzz’, in the specific context of the packaging, while close to the line of acceptability, did not breach the Code. The Panel advised that the company should be careful not to use the name ‘BuzzBallz’, either on the label or in wider marketing, in such a way that could suggest that the product could change a consumer’s mood or behaviour.
Accordingly, the Panel concluded that the packaging of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango did not breach Code rule 3.2(j) or any other part of the Code, and the complaint was not upheld.
Action by Company:
No action required.