“We have had the below concerns raised to our department via another Police Officer regarding the labeling (sic) of the following drinks: Tiny Rebel which uses images of what looks like a teddy bear on the box [redacted] Given that they are both the same size as standard can of coke adds to our concerns around the appeal to under 18s. The drinks were out of reach to children”
These drinks were seen in Sainsbury’s in Warlingham CR6 9DY”.
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 or promotion should not have a particular appeal to under-18s (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators)
The company’s submission
The company said that, after receiving similar complaints from two members of the public in 2017 and 2019, it felt the need to undertake its own due diligence and determine whether the artwork and labelling on its 330ml beer cans were in breach of the Code, specifically paragraphs 3.1 and 3.2(h).
The company said that, at the start of 2020, they had appointed an independent Market Research Company. A sample group was obtained through Panel ase and comprised 150 respondents aged 5-9, 154 respondents aged 10-15, 600 respondents aged 16-17 and 603 respondents aged 18+. The company noted the sample group was far larger than the two complainants who had complained about Cwtch in 2017 and 2019 and the single complainant who had complained about Clwb Tropica and Cali Pale Ale.
The company said the research addressed the appeal of the Tiny Rebel bear logo, the clarity of the can contents, labelling terminology, category confusion and the overall drivers of can appeal. The company said that, based on the market research, it was indefinitely satisfied that its corporate ‘bear logo’ did not have particular appeal to under 18s and did not breach code paragraph 3.2(h).
The company sent a report from the market research agency. The company invited the Panel to consider the research report as part of its response to the complaint about Cali Pale Ale, although the research itself did not include Cali Pale Ale.
The report began by summarising the Panel’s decisions on previous complaints about beer products offered by Tiny Rebel and other companies. It then outlined the objectives of the research, which it said were ‘to understand the specific appeal of its can’s design, and the wider drinks category, among the UK population (comparing under 18s and adults). It said the two primary objectives of the research were, firstly, to understand the overall design appeal of the company’s products and other brands and whether there was any confusion between alcoholic and non-alcoholic drinks. Secondly, to understand whether two of the producer’s products (not including Cali Pale Ale) had ‘particular appeal’ to under 18s, in the context of other similar brands in the category. It said that, in order to be able to make a comparative assessment for this research, the researched had defined a meaning for ‘having a particular appeal to under 18s as ‘that the brand being considered is rated more positively by under 18s compared to those aged 18 or over’.
In a section headed ‘methodology’, the report stated that the research was conducted using an online survey among 1504 UK consumers, including 5-15 year-olds (with permission from parents obtained for participation and the option to complete the survey together), 16-17 year-olds and 18+ year olds. It said some of the questions within the survey needed to be amended or excluded from being asked of under 18 year olds, to comply with the Market Research Society Code relating to interviewing children in relation to alcohol. It said the researchers were however able to ask under 16s about the designs and appeal generally, having first removed any references on the cans to alcohol. It gave the dates when the fieldwork was carried out and stated that it utilised various advanced techniques including: a virtual shop shelf with images of 330ml beer, ale, IPA and cider cans to determine the overall appeal of their designs; images of drink cans (alcoholic and soft drinks) to understand which drink category respondents felt they belonged to, based upon their design; ranking questions to determine particular design appeal; an open-ended question to determine the reason for particular appeal of the cans used in the study; specific questions relating to a Tiny Rebel product (not Cali Pale Ale) vs similar brands; and specific questions relating to the Tiny Rebel ‘bear logo’ and how it was perceived. It said 19 beer/ale/IPA cans, 1 cider and 8 non-alcoholic designs of can were tested in the study.
A section titled Executive Summary stated that key findings from the research showed that:
- over 60% of the cans included in the study, both alcoholic and non-alcoholic, were mis-classified by 16-17 year olds, who said they did not know what was in them
- terminology was important, as around 90% of 16-17 year olds knew the meaning of terms such as ‘beer’ and ‘cider’, with slightly less (c.>63%) understanding the terms ‘lager’ or ‘ale’. However even the term ‘beer’, which 90% of 16-17year olds said they understood, could be confusing: ginger beer, a non-alcoholic drink, was categorised by 16-17 year olds as alcoholic, clearly demonstration [sic] a confusion with ‘traditional’ terminology
- hardly any (only 16%) 16 to 17 year olds understood the term IPA. Cans that showed IPA as a product descriptor did not assist 16 to 17 year olds understand that product contained alcohol
- further confusion arose where alcoholic drinks referred to fruit, water or milkshake. These terms were traditionally linked to soft drinks.
- Colour had, by far, the strongest appeal to under 18s and over 18s.
The Executive Summary continued by saying that there was a high level of confusion in the canned drinks category (alcoholic & non-alcoholic) amongst under 18s, and this was not limited to just one brand. Clear descriptors on the front of cans were important, and could help, but did not guarantee that under 18 year olds would understand the content of the can. Both the alcoholic and non-alcoholic drinks categories were using brighter and bolder designs, cartoons, references to fruit and as a whole were confusing to 16 to 17 year olds.
The report stated that, based on this research, the researchers recommended the panel needed to take into context the entire category, the other competitor brands that the researchers believed clearly “breached several of the codes”, and the fact that Tiny Rebel’s products were clearly appealing designs to all but were not isolated.
The executive summary went on to state that, based on initial impressions on the shop shelf, their research showed that:
- Among under 18s and those aged 18 and over, there was little variation in the most appealing can designs
- Five out of the six most preferred can designs were common to both 16 to 17 year olds and those aged 18 and over
- The two Tiny Rebel products included in the research were both appealing designs (in the top 6) but they were equally appealing to both age groups.
It said, looking at the key features that drove appeal, the research found that:
- Colour was the primary driver of appeal across under 18s and those aged 18 and over for all brands
- But colour alone was not the only driver of preference: a clean and clear design and imagery also drove appeal
- The bear logo was not mentioned spontaneously as a reason for liking one Tiny Rebel product (not Cali Pale Ale) by 16-17 year olds
- 304 children aged 5-15 did not consider the Tiny Rebel bear to be teddy bear like and actually were more likely to agree it was more adult like, scary, mean, and rebellious. This was a view agreed with by 1,203 16 – 17 and 18+ year olds who were more likely to say the bear was scary, adult in design, rebellious, hard, mean, edgy, or graffiti/urban. The researchers concluded that the bear was not ‘particularly appealing to children’, as it was not particularly cuddly or friendly, which they said were the key attributes of a teddy bear.
Under the heading ‘overall conclusion’, the executive summary stated that bright colours and interesting imagery were a common theme among brands in the category and were used extensively by brands to create ‘shelf appeal’. Whilst there was no doubt that the Tiny Rebel products included in the research did have very appealing designs, to the credit of the designers, they did not stand out as having ‘particular appeal’ to under 18s, especially when all aspects of the can were considered together. The report said no one attribute determined whether a can was appealing or not: in many cases it was the colour, but in some cases, it was the clean and clear design and in others, the imagery, or the font. The report said most of the alcohol brands in the study appeal equally to those aged 18 and over and those aged under 18, based on the can design.
The report said the research found that many brands did not clearly specify they contained alcohol on the front of the can. It said many brands did mention a descriptor (IPA, beer, cider, lager or ale) as part of their name, but for many 16 to 17 year olds these descriptors were not well understood. The report said that, to add to the confusion, many of the brands used reference to fruit, milkshake and cartoons, all of which were traditionally more child related.
The Executive Summary concluded by stating that the research did not find the Tiny Rebel bear logo to be particularly appealing to children nor having the typical attributes of a child’s teddy bear. It said what the research did show was a huge confusion in the entire category, many brands clearly breaching the code and using child-like references, and terminology being confusing to the younger ages generally. The report also said it was clear decisions on specific ‘child-like’ appeal were subjective and the view of the individual.
The report went on to describe the findings in more detail.
The report included findings of ‘shop shelf’ research, in which participants were shown two of the company’s products amongst other alcohol products in cans on a digital ‘shop shelf’; research in which participants were shown images of alcoholic and non-alcoholic products and asked to say which category (alcoholic or non-alcoholic) they believed each product belonged to, based on the design; ranking questions to determine particular design appeal; an open-ended question to determine the reason for a particular appeal of beer, ale, IPA and cider products; and specific questions relating to the Tiny Rebel ‘bear logo’ and how it was perceived. 19 beer, ale or IPA cans, 1 cider and 8 non-alcoholic designs of can were included in the study, including two products made by the company and 26 made by other companies, including competitors.
The report included a section on the appeal of the Tiny Rebel bear logo. It said the bear of logo was not mentioned spontaneously in any of the verbatim by 16-17 year olds or 18+ year olds as a reason for its appeal. The report said the researchers, in addition, asked all age groups their views about the bear/logo to ascertain if it would be more likely to appeal to children. Due to the fact that they were interviewing young children they had to devise two questions, one that teenagers and adults answered, and another simpler version for the younger age group.
The participants aged 16-17 and 18+ were asked ‘when looking at the logo below, and for each of the following pairs of words, where would you place the logo design for each one?’ Respondents were asked to place the logo on a 7-point ‘bookend’ scale, (ie 4 was neutral). The terminology was alternated, so that not all the child-like themes or all the adult-like themes were on the same side of the bookends. The findings were:
- ‘cuddly’ (1) vs ‘scary’ (7): 4.92;
- child-like design (1) vs adult-like design (7): 4.26;
- ‘rebellious’ (1) vs ‘timid’ (7): 2.86;
- ‘hard’ (1) vs ‘soft’ (7): 3.14;
- ‘sweet’ (1) vs ‘mean’ (7): 4.85
- ‘edgy bear’ (1) vs ‘teddy bear’ (7): 2.63
- Traditional/classic’ (1) vs ‘graffiti/urban’ (7): 5.78
The researchers separately ran a simpler version of the question for the younger age group 5-15 year olds to obtain their opinion on the Tiny Rebel bear logo. In this question there were only four categories, and these were simplified to a 3-point scale. Participants were asked: ‘do you think the bear in the picture is …’
- more for children (32%); for everyone (32%); more for grown ups or adults (36%)
- more mean (38%); neither (35%); more cuddly (27%)
- good bear (27%); neither (25%); naughty or rebellious (48%)
- more like a scary bear (44%); neither (20%); nice and friendly bear (36%)
The report concluded that adults did not feel the Tiny Rebel logo was like a teddy bear and the results among children appeared to agree. It said the researchers could not see any clear indication that the Tiny Rebel logo on the can made the drink ‘particularly appealing’ to children or teenagers.
The Panel’s assessment
The Panel discussed the research report submitted by the company in response to the complaint and noted that it had been conducted by Beehive Research in April 2020 and subsequently amended in March 2021. The Panel discussed the market research and stated its disappointment that the company had not submitted the raw data behind the research report that the Panel had requested prior to the meeting. The Panel stated that it had wanted to review the raw data to formulate its own assessment of the research in context and was concerned that the report did not reflect all the outcomes of the research. The Panel noted that in most pieces of market research a formal written report would be accompanied by the raw data that sat behind it. For instance, every question that was asked as part of the research piece and the corresponding data. The Panel noted that in some analysis of research the participant selection, confounding factors such as weighting, confidence intervals and the statistical significance of the data would also be reviewed.
The Panel noted that the research was based on one sub-category of the alcohol market and did not represent the wider market that the products sat within when considering product packaging. The Panel acknowledged that large parts of the research report compared the company’s products to similar products on the market. Whilst acknowledging these sections, the Panel stated that it could only rule on the product that was subject to complaint and could not make any judgements on the other products that were referenced in the report.
After discussion, the Panel agreed that it could still consider the product in its entirety under the Code and would refer to the research report with caution.
Code Rule 3.1
The Panel discussed whether the packaging communicated the product’s alcoholic nature with absolute clarity. The Panel considered the overall impression conveyed by the product packaging and the number of ‘positive’ alcohol cues in relation to the number of ‘negative’ alcohol cues, in line with Portman Group guidance. The Panel noted that the front of the can featured a box that read ‘JUICY PALE ALE 5% ABV’, which was well demarcated and prominent on the front of the can, with clearly legible white text on a black background. The Panel discussed the research report submitted by the company and discussed the finding that 83% of 18+ year-olds questioned as part of the report understood the term ‘Ale’, whilst 63% of 16–17-year-olds understood the term. The Panel re-emphasised the previous caution it had stated at the beginning of the discussion about the research report but concluded that the term ‘pale ale’ would be recognised by most adult consumers as meaning alcohol, particularly when presented alongside the product’s ABV.
The Panel discussed the complainant’s concern that the 330ml can format was commonly used for soft drinks and considered whether there were any other ‘negative’ cues that suggested the product was non-alcoholic. The Panel noted that the text on the back of the can read as ‘NOSE: PINE / TROPICAL’ and TASTE: JUICY / PINE / MANGO’ but also noted that the can did not feature fruit imagery which could, in some cases, cause consumer confusion regarding a product’s alcoholic nature when considered alongside other elements. The Panel considered that the tasting notes did not imply the product was a fruit drink and also noted that there were no other ‘negative’ cues on the packaging. The Panel concluded that the overall impression conveyed by the packaging clearly communicated the product’s alcoholic nature and accordingly did not uphold the product under Code Rule 3.1.
Code Rule 3.2(h)
The Panel then considered whether the packaging had a particular appeal to under-18s. The Panel noted the research report defined ‘particular appeal’ as meaning ‘that the brand being considered is rated more positively by under 18s compared to those aged 18 or over’ but the Panel did not agree that that was the key test to determine particular appeal to under 18s. The Panel considered that particular appeal was not a question of quantity (i.e. appealing to more under 18s than over 18s) but rather a question of the way in which a design appealed (i.e. packaging that appealed to or resonated with under 18s in a way that it did not with over 18s).
The Panel considered that the imagery, including a stylised sunset and palm trees, conveyed a ‘California’ theme. The Panel noted the illustration included a bicycle, which could potentially be of interest to children, but considered that it was consistent with the California beach theme and was not presented in a way that was likely to appeal particularly to under-18s. The Panel considered that the colour palette was muted and the overall design of the product was mature.
The Panel noted that the can featured the company’s corporate logo, a drawing of a stuffed bear, next to the product description on the front of the can. The Panel discussed the two previous precedents where it had had discussed the bear logo as part of a complaint consideration: namely the Cwtch (2017) and Cwtch (2019) decisions. The Panel noted that on both occasions Cwtch was found to be in breach of the Code and that the bear logo had been a contributary factor in creating a particular appeal to under-18s when considered alongside the design of a bubble font and bright primary colours.
The Panel acknowledged that the bear was the producer’s corporate logo and considered that it did not necessarily breach the Code, in itself, but that it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance.
The Panel discussed the research report submitted by the company and re-iterated its caution about relying on its results. The Panel discussed the section of the report that focused on the bear logo and noted that in the younger age group of 5–15-year-olds only 36% of respondents thought the bear logo was ‘more for grown-ups or adults’ as opposed to groups which included children. The Panel also discussed the fact that the context in which the group had been shown the bear logo was not clear and was therefore unsure whether it was shown in isolation or as part of colourful packaging with other design elements which may have resulted in different outcomes.
The Panel stated that, as always, it was imperative to consider the overall impression of the product and that the impact of the bear logo depended on its size and context, including the presence of other design elements that may have a particular appeal to
under-18s and/or a design that focused attention on the bear. The Panel carefully considered whether the bear logo was an element creating particular appeal to under-18s in the context of the Cali Pale can. The Panel considered that the Cali Pale can did not feature other design elements that held a particular appeal to under-18s, particularly when combined with the bear logo. The Panel also considered, that in this particular context, the bear was not so prominent in the overall design that it was likely to create an overall impression which would have a particular appeal to under-18s.
Therefore, the Panel considered that the overall impression created by the can did not have a particular appeal to under-18s and accordingly did not uphold the product under Code Rule 3.2(h).
Action by Company: