Company: Diageo Great Britain Ltd
Final Decision: 2 June 2016
Considered under 5th Edition of the Code.
We would like to ask the Panel to consider whether the Captain Morgan pirate logo used on bottles and other items by Diageo is in breach of Section 3.2 (h) of the Code, which states that “a drink, its packaging or promotion should not have a particular appeal to under-18s”, and in particular contravenes the guidance that “cartoon-style imagery…bright colouring… pictures of real or fictional people known to children or terminology popular with children should not be featured”.
It is indisputable that Captain Morgan as he appears on Diageo’s packaging and marketing materials is a “cartoon-style” image with “bright colouring”. He is also clearly both a real and a fictional person known to children: the popularity of 17th and 18th century pirates with young children is attested to by a wealth of books, films and toys; and the Captain Henry Morgan, on whom the drink’s branding is based, is both a well-known historical character and has been fictionalised in a number of stories in print and on screen.
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 began by addressing the complainant’s view that that the image used on the product is a cartoon that contains bright colours and is therefore appealing to children. The company explained that the Captain Morgan image is not a cartoon or cartoon style image but rather is an image with significant and accurate historical detail that bears true resemblance to a 17th century captain of the Royal Navy. The company added that the Captain Morgan image has no similarities to the romanticised, archetypal pirate that is the subject of children’s stories but in fact is intended to depict Sir Henry Morgan, a 17thCentury buccaneer that would likely be lost on children but recognisable to adults. The company explained that the colours used on the image are in keeping with the historical period of the setting and are all mature hues with depth and shading, rather than the bright, loud or artificial colours that are attractive to children.
In response to the complainant’s view that the image used on the product is a character that is known to children, the company argued that the differences between the archetypal pirates commonly used in children’s stories and the image of the sea captain used on their products were significant and immediately obvious. Most notably, that the image of the sea captain lacked any of the visual clues of the archetypal pirate that are recognisable to children, such as a wooden legs, a parrot, an eye patch, missing teeth or a treasure map.
The company noted that the image has been used on the product range for more than 30 years and is now synonymous with the brand, and could not be confused as a mark of anything but an alcoholic product intended for adult consumption. The company did not believe that that Sir Henry Morgan is a well-known historical character and that in the absence of their brand, he would be largely unknown to the general public.
The company went on to explain that they are acutely aware of the need to ensure that their products do not have under age appeal and that they continually exercise great care in ensuring that all marketing communications involving the brand are appealing to an adult target market.
The company said that all Captain Morgan products are clearly identifiable as alcoholic beverages and that many of the products prominently feature the word “Rum” in large font and used the words “distillery” or “distilled” in addition to standard EU requirements.
Finally the company drew comparison to a number of past cases including Laverstoke Park (2012) and Gamma Ray (2015). The company argued that unlike the Laverstoke Park product, their product does not evoke a setting or atmosphere that would particularly resonate with under 18’s. The company noted that in the case against Gamma Ray, not upheld, the Panel had considered the boldness, luminance and contrast between colours on the basis that a high contrast colour scheme or luminous colours could particularly resonate with under 18s. The company said that compared to the Gamma Ray product, their product has arguably less contrast between the colours used and their image has a low level of luminance.
The Panel’s assessment
When deliberating the complaint, the Panel considered a range of items from the Captain Morgan product portfolio. The samples had been provided by the producer and were intended to cover all variations of the image used across the range.
The Panel began by discussing whether the image used on the product range was a cartoon or cartoon-like in style and might therefore be particularly appealing to under 18s. The Panel discussed the image at length and considered that the image was not a cartoon or cartoon like and that it more closely resembled a piece of art or oil painting than it did a cartoon. The Panel recognised that the colours used on the image were of a mature, shaded hue and that the image lacked luminescence or the bright colours that might be appealing to a younger audience. The Panel also concluded that the image was very old fashioned and traditional in style and was reminiscent of Victorian book illustrations and did not resemble any modern cartoons or characters.
The Panel discussed whether the image exhibited any visual clues or similarities to the archetypal pirate image that is commonly used in children stories and would therefore be recognisable by, and appealing to, children. The Panel considered that there were no obvious similarities between the image used on the product and the pirate images commonly depicted in children’s stories, such as an eye patch or wooden leg, and recognised that the image was of in fact of a 17th Century Sea Captain and not a pirate.
Considering the lack of resemblance between the Captain Morgan image and archetypal pirate commonly used in children’s stories, the old fashioned and adult style of illustration and muted colours used, the Panel concluded that it did not breach Code rule 3.2(h).
The Panel then discussed whether there was any other section of the Code that it considered relevant to the product range. A discussion followed with regard to ‘Captain Morgan Spiced Rum and Cola 205ml can 5% ABV’ (a pre mixed spirit and soft drink) and Code rule 3.1 and whether the alcoholic nature was communicated with absolute clarity. Whilst the Panel noted that the product complied with EU Regulation 1169/2011 on the provision of food information, and therefore could not breach Code rule 3.1, there was concern over the prominence and size of the word ‘cola’ whilst the word ‘rum’ was much smaller and recessive in comparison. The Panel felt that considering the product was sold in a 250ml can, a size which is also commonly associated with soft drinks, and the red colour of the can is similar to that of a cola drink, the alcoholic nature of the product could be made clearer by increasing the dominance of the rum descriptor. The Panel recognised that it was inevitable that alcoholic drink producers might adopt packaging styles also used by soft drinks (in this case 250ml cans) but noted that in such instances, producers should take extra care to ensure that the alcoholic nature of the product is very clear.
Action by the Company
No further action required.