Producer: Silent Pool Distillery

Final Decision: 26 November 2020

Considered under the 6^th Edition of the Code.

Complaint summary:

“I’ve just come across Silent Pools new CBD gin “Colorado High” which is clearly making reference to “getting high” on an alcoholic product! Even the picture on the front looks hallucinogenic..”

COMPLAINANT

Portman Group acting in lieu.

Decision:

Under Code paragraph 3.2(c):

3.2(c) A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with, acceptance of, or allusion to, illicit drugs

UPHELD

Under Code paragraph 3.2(j)

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

UPHELD

The company’s submission

The company said it had sold over 2000 bottles without any negative feedback that any consumers believed the product name referred to an illicit drug. The company also added that it exported the product to three countries within the EU and had never received a complaint. The company stated it did not believe the product was in breach.

The company explained the CBD came from Colorado USA, and one of its unique features was that it was grown at an altitude over one mile above sea level. The company pointed out that Denver (capital of Colorado) was known as the ‘Mile High City’. The company said this location and altitude ensured the highest quality ingredient – free from pollution, using pure mountain water, and enjoying Colorado’s 300 days of sunshine.

The company stated that the purity of raw materials was a key part of the marketing to health-conscious consumers who believed CBD had health and wellbeing benefits. The company said it had drawn on their location assets to amplify the point.  They said the Colorado High referred only to the location and nothing else.

The company stated CBD had no hallucinogenic effects and was not an illicit drug. The company also stated it was widely marketed and sold in a range of products, with various concentrations and applications.

The company said CBD was widely believed to enhance overall body wellness enhancements; it had referred to that view but did not suggest it had any other effect. The company said it did not hide the fact that the product contained CBD as CBD was not an illegal or proscribed product.

The company stated it had not used the name ‘cannabis’ or any other illicit drug name, nor had it drawn comparisons or associations to illegal drug use. The company said it focused on the pollution free nature of the CBD.

The company explained the ‘High Plains Snifter’ cocktail recipe was a play on the 1973 film ‘High Plains Drifter’. The company stated the High Plains were in Colorado and did not draw a connection with an illicit hallucinogenic drug; there were plenty of other movies it could have made the connection with if it had wanted to.

The company sent a photo which inspired the artwork. The company said the colours in the illustration sought to stylise the Autumn colours in the photograph of the famous Colorado scene.  The company said it had not taken an abstract drug induced scene but had sought to anchor the product in messaging around pure, clean, high mountain peaks, an allusion to the product name.

In response to the Panel’s provisional decision, the company stated that it was concerned that the foundation of the Panel’s concern seemed to be that CBD was an illegal or illicit substance when it was not. The company stated that CBD was freely and widely available because there was no evidence that it had any negative impact and modest evidence that it had a positive impact. The company highlighted that while CBD fans and consumers believed CBD had health benefits, that was a personally advocated view rather than a clinical truth.  In short, the company stated that there was no identifiable consumer harm from the product that the public needed to be protected from.

The company went on to address some of the points made in the Panel’s provisional decision.  The company reasserted that the mountains and lake were a stylised version of a famous view and the distorted view through the artist’s eyes did not make it ‘hallucinogenic’.

The company noted that the Panel appeared to be using a dictionary definition of ‘high’ which rested on intoxication or euphoria, states that would be far greater than CBD would cause.  The company suggested that the briefing note the Panel received was bias as it tried to link CBD to cannabis.

Notably the company stated that the back-label wording was deliberately very broadly cast, to effectively be meaningless. The company stated that it did not claim to suppress or enhance anything, instead it talked about balance, whatever that was for a person and left the consumer unaltered.

In conclusion, the company claimed that the Panel had made assertions as to whether consumers would infer therapeutic benefits from CBD and that this was not proven.

The Panel’s assessment

The Panel first considered whether the packaging suggested an association with illicit drugs.

The Panel understood that cannabis was an illicit drug in the UK but that CBD was not.  They noted the packaging referred to CBD and hemp but not to cannabis.

Some Panel members thought the image of the mountains and the lake, with stylised rainbow colours, had a hallucinogenic feel but the Panel considered, on balance, that the image was not a problem in itself.  The Panel acknowledged that the producer intended the product name to refer to the location and altitude of the place where the CBD was produced.  They also noted, however, that Colorado was one of the first states in the US to decriminalise recreational cannabis and that ‘high’ was commonly associated with drugs. The Panel considered that these elements might be acceptable, individually, in some contexts but concluded that on this packaging, the cumulative effect of the image, the reference to Colorado and the word ‘high’ created an indirect association with illicit drugs.  The Panel therefore concluded that the product breached Code rule 3.2(c).

The Panel was also concerned that the packaging implied the product had therapeutic qualities.  The Panel noted that the back label of the product stated ‘A sensory infusion of wellness-enhancing CBD and refreshingly complex gin …’ and ‘Colorado High is a spirit that supports your body’s natural balance and tastes great doing so’.  The Panel discussed the company’s response to the provisional decision and considered that there was a distinction to be made between the legality of CBD, which was not an issue, and any suggested therapeutic effects. The Panel was of the view that that the packaging did convey a health benefit by stating that it was ‘wellness-enhancing’. The Panel considered these claims were clear and explicit claims that the product had therapeutic qualities and accordingly upheld the complaint under Code rule 3.2(j).

The Panel then discussed the product descriptor ‘CBD Gin’ and questioned whether it was acceptable to include ‘CBD’ in a product description on packaging containing alcohol.  The Panel noted CBD was widely marketed as providing pain relief or other health benefits.  The Panel was concerned that consumers were therefore likely to infer that an alcoholic product containing CBD had therapeutic benefits, even in the absence of explicit claims about health or wellbeing.

The Panel considered that producers should give consumers information about the inclusion of CBD as an ingredient, if it was present, but could convey that without referring to CBD in the product name.  After carefully considering the risk that consumers would infer therapeutic qualities, the Panel concluded on the basis of the evidence in this case that products containing CBD should name it as an ingredient but should not incorporate CBD into the name of the product or the product descriptor or feature it prominently on their packaging.

The Panel considered that including CBD in the product descriptor, immediately below the brand name, amounted to an implicit claim of therapeutic qualities.  The Panel concluded that the description ‘CBD Gin’ on the front of the bottle, as well as the claims about wellbeing elsewhere on the packaging, breached Code rule 3.2(j). The Panel urged caution to companies that marketed health and wellness products and stressed the need to avoid suggestions that such products had therapeutic qualities.

The Chair directly responded to the company’s allegation that the Panel had received bias advice by linking CBD to cannabis.  The Chair sought to remind the company that the complainant, company and the Panel all received the same list of documents for consideration and the company had been given sight of this before the meeting.  The Chair noted that the Panel had received the complaint, the producer’s response, previous similar Panel decisions and publicly available guidance under Code rule 3.2(j).  The Chair strongly refuted the suggestion that the Panel was not independent.

Producer: Heineken

Final Decision: 3 September 2020

Considered under the 6^th Edition of the Code.

COMPLAINT SUMMARY:

“I wish to complain about Orchard Thieves Cider, where the can shows a cartoon animal which would be attractive to children & it also states “Stolen from Herefordshire”, which is a clear admission of illegal activity.”

COMPLAINANT:

Member of the public

DECISION:

Under Code paragraph 3.2(h):

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

NOT UPHELD

Under Code paragraph 3.3:

3.3     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.

NOT UPHELD

The  company’s submission:

The company stated Orchard Thieves cans were only available until the second quarter of 2019. The company highlighted they were removed from the off trade and only available with EasyJet until July 2020. The company stated it was important to note the cans were not available in the UK and there were no plans to reintroduce them, they were only available in draft form on the on-trade with a new refreshed design from July 2020.

The company explained the name was inspired by foxes eating apples destined for cider in their Herefordshire orchard. The company stated the fictional brand story stated foxes wanted the best apples, but they wanted them for the cider. The company did not believe the image or strapline breached the Code.

The company stated the image of the fox did not appeal to under 18s because:

• The branding was monotone – cream and black which did not appeal to under-18s
• The fox was not in a ‘cartoon’ style, but was a stencilled silhouette accurately depicting the outline of a fox. There was no facial expressions or characterisation in the imagery which reduced the risk of appeal to under-18s
• The fox was not a famous character known to under-18s
• It was clearly marked as cider with the ABV clearly labelled.

The company referenced the Portman Group’s Guidance Notes for Code Rule 3.2 (h). The examples which would be deemed a breach included cartoon characterisation, ‘young’ colours like pink or blue. The company stated none of these applied to Orchard Thieves.

The company stated the phrase ‘Stolen from Herefordshire’ would no longer be used from August 2020. The company explained that to cause serious or widespread offence, it would need to believably be offended the majority of people. The company did not believe this was the case. The company stated it was clearly a make-believe notion a fox could intentionally steal apple, and even more so it was encouraging people to steal apples.

The company highlighted that no group was being targeted by the phrase, and did not believe the majority of people would interpret it as offensive.

The company raised 3.2(b), and stated it believed the product could be considered under the rule. The company stated it wished to respond to this rule so the Panel could make an informed judgment.

The company stated it was clear the language related solely to foxes, and this was further implied by the image of the fox on packaging and marketing materials. The company also stated the majority of consumers would not believe the line was a serious intentions for them to steal pales, or for their customers to be influenced to steal apples themselves.

The company explained it was a fabricated story which emphasised the importance of the apples from Herefordshire for cider maker. The company also highlighted it was not illegal for a fox to take apples from an orchard. The company stated the phrase ‘Stolen from Herefordshire’ relates directly to the name of the cider, is directly related to the fictional fox thieves, and is incorporated on the same pack as the brand name making the association clearly visible.

The company concluded it did not believe the product breached the Code. The company stated the muted colours, silhouetted imagery and illogical notion of foxes stealing apples would not appeal to under18s or be taken seriously as endorsing or promoting illegal activity. The company emphasised the can design and strapline would not be used further.

The Panel’s assessment

The Panel noted the product had recently been withdrawn from the UK market but had been available from UK retailers when the complaint was received; they considered that the complaint was therefore covered by the Code.  The Panel considered the product under rules 3.2(h) and 3.3, cited by the member of the public who originally complained about the product, and rule 3.2(b), raised by the Panel.

The Panel noted that the fox was depicted as a monotone silhouette with no facial expression or eyes.  They considered that the image of the fox did not resemble cartoon imagery of a type that had particular appeal to children and that the overall presentation of the product had a mature feel.  They considered that the product was acceptable under rule 3.2(h).

The Panel discussed the text on the side of the can that said “Stealthy by nature, the fox has been known to sneak into our orchards late at night, hunting the most delicious apples from our Herefordshire homeland. Now we’re stepping in, using our wily friends’ favourite fruit to craft a tasty apple cider that is crisp & refreshing, full of flavour to the last sip”.  They considered that the packaging communicated a brand narrative that was clearly a fictional story, and successfully linked the fox to the apples used in the product.  They considered that the references to thieves and stealing were clearly attributed to the fox and referred to a type of stealing that was not a crime.

The Panel discussed the principles they had established in previous decisions and noted that they had in the past upheld complaints about illustrations of animals on the grounds that they suggested an association with illegal behaviour. They clarified that depictions of anthropomorphised animals engaging in human-like illegal or antisocial behaviour were likely to breach the Code.  In this case, however, they considered that neither the image nor the text presented the fox as anthropomorphic.  They concluded that the packaging did not condone or encourage human criminality and that the product did not breach rule 3.2(b).

The Panel also noted the member of the public who originally complained about the product had cited rule 3.3 but had not provided further information about why they believed the packaging caused serious or widespread offence.  The Panel could not see any aspect of the packaging that was likely to cause serious or widespread offence and considered that the product did not breach rule 3.3.

Action by Company:

None required

Producer: Hammerton Brewery in collaboration with Brew By Numbers

Final Decision: 16 July 2020

Considered under the 6^th Edition of the Code.

Complaint summary:

“I wish to express concern about the naming and packaging of Hammerton Brewery’s beer, ‘Buoyancy Aid’.

My main concern is that the name could be misconstrued as doing exactly what it says on the tin, and suggest it is an aid to swimming after consumption. This is against 3.2j in the Portman Group Code of Practice – to suggest that the product can enhance physical capabilities. The name could also be seen as saying that it’s ok to swim whilst drunk, which is against 3.2b of the Code of Practice – association with a dangerous activity, ie swimming whilst drunk.

My secondary concern is that the packaging graphics also show very prominently the sea, with anthropomorphic cartoon fruits swimming in it. Again I think this is against point 3.2b of the Code of Practice (suggesting a link between swimming and drinking). I also think the cartoon fruits are against point 3.2h of the code, as the bright and colourful fruit characters look to have an appeal to under 18s. The characters are not out-of-keeping with the sort of angry or shocked characters used on various modern-day sour sweets packets sold to children.

I understand the product’s references to the ocean may be to try and champion the beer’s unusual sea-salt ingredient, however I think a potentially dangerous route has inadvertently been chosen to do this.”

Complainant:

Member of the public

Decision:

Under Code paragraph 3.1:

3.1     The alcoholic nature of a drink should be communicated on its packaging with absolute clarity

 NOT UPHELD

Under Code paragraph 3.2(b):

3.2(b) A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour

NOT UPHELD

Under Code paragraph 3.2(h):

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

NOT UPHELD

Under Code paragraph 3.2(j):

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.

NOT UPHELD

The company’s submission

The company firstly explained that Hammerton Brewery was taking the lead responding to this case.

The company stated they had never received a complaint from consumers or regulators, nor had any retailer suggested the packaging appealed to under-18s or gave physical capabilities.

The company explained the name of the beer; it originated from Guava and Soursop (fruits used within the brewing) which both float, and the sea on the label symbolised the sea salt used. The company highlighted the lack of references which stated the product would help consumers to swim, enhance physical qualities, or implied it was fine to swim while inebriated.

The company stated the beer was only sold in specialist beer shops and online retailers, who have strict codes and procedures to prevent sales to under-18s. The company explained that nobody who saw it would believe the product helped your swim or promoted drinking and swimming.

The company highlighted that the product clearly stated the alcoholic percentage, that it was brewed and listed the ingredients.

The company addressed the complaint that the fruit appealed to under-18s; they stated the illustration showed the exotic ingredients and was not designed to appeal to children.

The company quoted from the ICP decisions for Gamma Ray and Neck Oil:

“…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.”

The company argued the same reasoning should be applied to Buoyancy Aid on the basis of colour.

The company stated the floating exotic fruits and text in no way implied enhancement of physical abilities or endorsed drinking while swimming.

The company listed cues which communicated that the product contained alcohol:

• Prominent use of alcohol content on front and back of the can
• Number of UK Alcohol units in a way approved by Campden BRI’s packaging check service
• BEER written in numerous different languages on label
• Ingredients shown i.e. malt, barley, hops, wheat, yeast all ingredients commonly known for creating beer
• Pregnancy consumption advisory logo
• Brewed words on the front of the label
• Hammerton Brewery name and website on numerous parts of the packaging

The company noted the Panel had not upheld complaints about Gamma Ray because the alcoholic content was clear, and recognised packaging which had come to define the craft beer category.  The company argued that UK consumers recognised the style as distinctively associated with craft beer, and not appealing to under-18s.

The company concluded that the high cost, £5 per unit (due to cost of ingredients), made it particularly unappealing to under-18s.

The Panel’s assessment

The Panel firstly discussed Code Rule 3.1, which was raised by the Panel.

The Panel expressed concerns that the front of the can was very busy, and the descriptor ‘Soursop and Guava Gose 4.2%’ was not widely understood by the average consumer. However, they concluded that the line ‘brewed to our resolution’ on the front of the can and the information on the back of the can did mean the alcoholic nature was conveyed with clarity. The Panel agreed the producer could do more to ensure the information was displayed more clearly on the front on the can but taking the product in its entirety they did not believe the product breached Code Rule 3.1.

The Panel then moved to Code Rule 3.2(b), specifically the complainant’s concern about a connection between the product’s label and swimming while consuming alcohol. The Panel emphasised that making a connection between drinking alcohol and swimming was inappropriate, but they did not believe that this connection was made on Buoyancy Aid’s packaging. The Panel noted that ‘Buoyancy Aid’ was a noun and not an encouragement to swim and considered that the product was not making the connection between drinking and swimming. The Panel also considered that the berries were not anthropomorphised with arms and legs and appeared to be floating more than swimming. The Panel therefore concluded there was no breach under Code Rule 3.2(b).

The Panel then discussed the complaint under Code Rule 3.2(h). The Panel considered that the muted nature of the colours and the non-anthropomorphic fruits did not have particular appeal to under-18s. The Panel also noted the size of the can was 440ml, a widely perceived as a container size for alcoholic products and a cue it was not a soft drink for children. The Panel looked at the product in detail and noted some more expressive characters, particularly the grumpy looking berry by the name of the product and the berry sticking out its tongue on the back. However, the Panel did not believe this was strong enough to constitute particular appeal to under-18s and therefore did not uphold under 3.2(h).

Finally, the Panel discussed Code Rule 3.2(j). The Panel was clear that they did not believe the product was suggesting it gave the consumer the ability to float better and they did not think consumers would interpret in that way. They discussed whether the product name implied that it buoyed up the mood of the consumer, but noted the images and branding did not promote that interpretation.  Having taken the overall impression into account, the Panel considered that the product did not imply that it would change the consumer’s mood or behaviour. The Panel concluded Buoyancy Aid did not breach 3.2(j).

Action by Company:

None required

Product:                  Frosty Jack’s Cider

Producer:                Aston Manor

Final Decision: 16 July 2020

Considered under the 6^th Edition of the Code.

Code Signatory:

Yes

Complainant:

Member of the public

Complaint summary:

“I would like to complain about the product produced by Aston Manor Brewery, Frosty Jack’s. I have seen this product on numerous supermarket shelves and feel like it has a great appeal to children and those under the age of 18.

As Frosty Jack’s is produced in 2.5L blue plastic bottles, this is very similar to existing soft drink brands including sprite, 7UP, which come in green plastic 2L bottles. It is hard to draw to mind and other alcoholic beverages that are sold in plastic bottles above the 1.5L size. Therefore, I would think that both 3.2(h) and 3.2(i) are in breach. These types of bottles would also be stacked in the same way in a personal fridge and children may get confused by the bright coloured plastic and the contents of what may be inside of the bottle. The fact the bottle is blue may be confused with “bubble gum” flavoured pop which is also blue or a range on isotonic drinks which are also blue.

The name Frosty Jack’s, I believe is also in breach of code 3.2(h) and 3.2(i), since Jack Frost has it roots deep in early 19th Century literature over the years the character Jack Frost has appeared generally as appealing to children and being friends with Santa Claus. He has appeared in video games marketed at children, children books, films and other literature children are especially exposed to in the autumn and winter months from a very early age. The character Jack Frost is well loved and rooted in children deep from an early age along with Santa, therefore it would not be surprising if any small child mistook “Frosty Jack’s” for a drink for Jack Frost aimed for children.

The rebranded has muted colours of white and grey that show scenes of snow, ice and a general winter feel, therefore a child may enjoy the scenery and feel like it is aimed at them or misconstrued the name “Frosty” as a thirst quenching drink to drink when it is particularly warm. Like any child would with an ice pop, or choc ice’s. (E.g Mr Freeze Jubbly Ice Lolly’s widely available) The image of Jack Frost also is associated with snow men that particularly appeal to children as a pastime.

Furthermore 3.2(f) I feel is also breached because 2.5L at 7.5% is quite a large quantity of alcohol for a single container and is mostly unseen in any other form, beer and spirits are in lower quantity containers.

There is also a great similarity with the apple on the logo and that of Apple Inc, who produce smartphones tablets etc, most teenagers will have access to these devices before they are 18. They are extremely similar and given the addiction of teens on technology it would be easy for a teen to think that this may be part of the same company.

Finally in relation to 3.2(f) the first page of search engines hazards newspaper reports of people who have binge drinked and have indulged in Frosty Jack’s cider setting the scene for a binge drinking culture around the brand.”

Decision:

Under Code rule 3.1(f)

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

NOT UPHELD

Under Code rule 3.1(h)

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

NOT UPHELD

Under Code rule 3.1(j)

3.2(i)  A drink, its packaging and any promotional material or activity should not in any direct or indirect way incorporate images of people who are, or look as if they are, under 25 years of age, where there is any suggestion that they are drinking alcohol, or they are featured in a significant role. Images may be shown where people appear only in an incidental context.

NOT UPHELD

The company’s submission

The company stated they were a responsible producer and outlined their commitments and investment in sustainability, corporate performance and social responsibility.  They said they were members of the Portman Group, a supporter of Drinkaware and had committed to the Alcohol Education Trust until at least 2022.

The company said they had made changes to their product pack sizes, including changing the size of Frosty Jack’s from 3 litre to 2.5 litre, which had reduced the overall amount of alcohol consumed. They said they had invested considerable resources to encourage an informed and balanced debate around alcohol so that approaches were effective and proportionate. They highlighted independent studies they had funded to research the views of both frontline drug and alcohol workers and UK adults on the effectiveness of different approaches. They said the views expressed in both studies were that it would be a disservice to the small minority of those struggling with misuse to believe the simplicity of whole-population measure would address the complex and often personal reasons people misused a range of substances. The company said they supported that position.

Context of the ‘white cider’ category/consumer

The company stated white cider accounted for less than 4% of cider sales, less than 0.27% of total alcohol, and was in long-term decline.

The company said the media’s portrayal of the category and brand was inaccurate and given undue prominence: they believed white cider consumers were maligned without justification.

The stated 92% of white cider drinkers were employed and 79% had household income under £20,000 (‘just about managing’ families). They said these consumers had a repertoire of drinks that naturally included more value products, given their income. The company said white cider consumers spent more on spirit, beer and wine than they did on white cider and that, when they switched their white cider expenditure to other drinks categories, they tended to switch to higher-strength products such as spirits, wine and sparkling wine (in that order). They sent information generated from their own market data and research conducted for them by independent research agencies to support these figures.

The company argued there was nothing to point to white cider drinkers’ consumptions being excessive, and said more their more affluent neighbours would direct more of their consumption to higher strength products like wine.

The company addressed the complaint about similarity to soft drink brands.  They stated packaging sizes were consistent for drinks whether they contained alcohol or not. The company explained that colour was added to the glass or plastic used for alcohol products because exposure to light could alter the taste and colour of the drink. They noted that, historically, different colours were used for different product categories and blue had been commonly used for cider packaging for decades.  The company explained the colour served a practical purpose and, although modern production methods had lessened the need for coloured bottles, it was a commonly understood practice and was clearly not intended to mimic soft drinks or cause confusion.

The company responded to the complainant’s concern about ‘bubble gum flavoured pop’ and isotonic drinks; the company stated this was without foundation and the complainant had not objected to the fact that the product was clearly labelled as cider/alcohol. The company argued that ‘bubble gum’ flavoured drinks displayed that description very prominently and provided images of examples. The company stated it had been impossible to find a PET pack of an isotonic drink larger than 500ml.

The company argued that, because both the size and colour of packaging was associated with both alcoholic and soft drinks, what was at issue was whether the product made clear that it was an alcoholic product.  They noted the complainant had not objected that the product failed to make clear its alcoholic nature.

The company responded to the complainant’s concern about the character Frosty Jack. The company stated no connection was ever made or implied between the product and Jack Frost. The company also stated that no imagery has ever been used in their packaging or marketing to characterise Frosty Jack, or Jack Frost. The company explained the connection between cider and ‘jack’ related to a distillation process called ‘apple jacking’, which involved very low temperatures, and they noted many cider brands included ‘jack’ references in their product names.

The company said the branding hinted at snow and ice and was an evident and legitimate reference to ‘apple jacking’ and the serving suggestion to ‘serve Frosty over ice’.

The company then addressed concerns around the strength of the product; the company stated the total numbers of units and CMO guidance were clearly provided, as wells as the number of units in a standard serving (half pint). The company highlighted it was a resealable pack and a quality product and argued there was no need to advise for it to be consumed within a specific period.

The company said the link to the Apple logo was barley credible, and the logo represented the largest ingredient of the product, apples. The company said it was legitimate, relevant and a positive image to have included on the product, and that it would be hard to find a cider product which did not use an apple in some form. The company also explained minimalism was a hallmark of Apple and has never been for Frosty Jack’s.

The company said there was nothing on the packaging, marketing or communication that suggested a binge drinking culture linked to the brand. The company said their internal compliance team reviewed their social media content to ensure they complied with rules and guidelines.

The Panel’s assessment

The Panel acknowledged that the complainant had cited rule 3.2(i) but they noted the packaging did not feature images of people of any age.  They concluded that the product did not breach rule 3.2(i).

The Panel discussed whether the product had particular appeal to under-18s.

They first addressed the complainant’s concern about implicit links to the Jack Frost character and to Apple logos.  The Panel noted the packaging did not feature a Jack Frost character.  They found nothing on the packaging that resembled Apple (the technology company)’s branding and considered that it was entirely reasonable for cider products to reference apples in general.

The Panel debated the complainant’s wider concerns about the colour scheme and branding.  They considered that the packaging was relatively plain and did not include high-contrast colours or illustrations likely to appeal to under-18s.  They considered that blue packaging was not inherently problematic.  Some Panel members could see a potential link to bubblegum colours but others argued that the packaging was not reminiscent of bubblegum or soft drink branding.  The Panel agreed that the overall impression conveyed by the packaging did not have particular appeal to under-18s and concluded that the product did not breach rule 3.2(h).

The Panel gave careful consideration to the complainant’s concern that the product encouraged immoderate consumption.  The Panel had regard to the Portman Group’s research on consumer perceptions of different types of alcohol container, conducted in 2019.

Panel members had experience of seeing vulnerable people with alcohol problems drinking white cider.  The Panel acknowledged the wider cultural context around the product category including concerns that it was sold predominantly through convenience stores where vulnerable consumers, including street drinkers, were likely to buy alcohol.  The Panel looked closely at the packaging to assess whether it encouraged immoderate consumption by either average or vulnerable consumers.

The Panel saw that the label included the unit content for the bottle and per serving.  They considered that the product could more clearly promote sharing and responsible consumption, but noted that it did give consumers information about the recommended serving size.

The Panel noted the Guidance published by the Portman Group’s Advisory Service recommended that containers that were typically single-serve should not contain more than four units of alcohol.  The Panel also referred to research commissioned by the Portman Group, which found that a large majority of consumers believed bottles containing more than 2 litres were designed to be shared and/or consumed over more than one sitting.  The Panel discussed whether any elements of this product’s packaging would counteract consumers’ usual assumption that this type of product contained multiple servings or encourage them to drink excessive quantities in one sitting.  The Panel found no elements of the product packaging that compelled or encouraged immoderate consumption.

The Panel concluded that the product did not breach rule 3.2(f).

Action by company:

None required

Producer: Van Pur S.A.

Final Decision: 30 January 2020

Considered under the 6^th Edition of the Code.

Complaint summary:

“Although there is no direct reference to the strength of the product, the red and bold font of the alcohol strength at 9% against a black background gives indirect reference to the alcohol strength. Additionally, the product is 4.5 units in a 500ml can.

The product’s packaging and alcoholic strength encourages immoderate consumption, as the number of units at 4.5 exceeds the recommended dose in a single -serve container. There seem to be no mitigating factors in favour of the packaging, which lacks a ‘share’ message or a ‘per serve’ recommendation, it is non-resealable, the producer is not able to demonstrate that the contents are to be shared (by decanting) or consumed over more than one sitting. Although there is a reference to the Drinkaware website and the number of units in the container, this does not diminish the fact that this stronger than average lager is to be consumed at one sitting by one consumer”.

Complainant:

Zenith Global (as part of the independent audit of the Sixth Edition of the Code 2019)

Decision:

Under Code paragraph 3.2(a)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way give the higher alcoholic strength, or intoxicating effect, undue emphasis. A product’s lower alcoholic strength may be emphasised proportionately when it is below the average strength for similar beverages. Factual information about alcoholic strength may be given.

UPHELD

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.

UPHELD

The company’s submission

The company firstly stated they did not believe the information ‘9%’ was misleading to the average beer consumer. The company referenced art. 7 of Regulation 1169/2011 and said that, in light of decisions from European Court of Justice, it could be assumed the average beer consumer would not be encouraged to consume more of the product due solely to the presentation of the alcoholic strength in the product. The company stated “Karpackie 9%” was an element of the name which could be provided on a voluntary basis under article 36, section 2 of that Regulation.

The company noted the product had a high alcoholic strength per unit package and as such was classified as a super strong lager. They said the law did not prohibit such products and stated that they sold the product in numerous countries worldwide. They said that, in their experience, most manufacturers of beers in this category presented the alcoholic strength on the front of the can in a clear manner.

The company said they believed 9% was factual information about the alcoholic strength of the product. The company noted rule 3.2 (a) did not specify the “higher alcoholic strength” referred to, as opposed to lower alcoholic strength. They said 9% was a typical strength for beer in this category and argued that “9%” did not emphasise that the beer was stronger than other similar ones.

The company stated 3.2 (f) was a general standard and did not specify what exactly encouragement of immoderate consumption was. The company said it was not possible to claim the labelling encouraged immoderate consumption, when looking at the labelling from a comprehensive perspective. The company said “9%” was a message that clearly warned to consumers about the type of product it was. They emphasised that the lack of this information could be misleading and could lead consumers to purchase a beer stronger than planned. The company referred to another range of beers that identified one product in the range with the alcoholic strength.

The company stated they did not wish to limit themselves to placing a warning about alcohol consumption through the drink responsibly icon. They explained they also wanted to add a note that the product contained more than one recommended portion and that it must be consumed responsibly. The company said they wanted to add information recommending that consumers divide the consumption of their 9% beer over more than one portion, with the declaration ‘best served shared’. The company added they had faith in the consumers rationality. They argued that the alcoholic strength presented on the packaging did not indicate that the manufacturer encouraged consumption of excess amounts of alcohol. They said they understood that certain recommendations about beer consumption were assumed for adults, but those recommendations had no legal effect when it came to product labelling.

The company said 3.2(a) and 3.2(f) could be interpreted differently: they argued that one might take a subjective approach, as they believed the complainants had, but they believed it was better to refer to objective criteria such as the average consumer. The company expressed concern that a “subjective interpretation” of standards as general as these concerning a product, which fulfilled the requirements of commonly effective law, might lead to groundless commercial barriers ie infringe upon free movement of goods and free competition. They argued that this would consequentially lead to unauthorized restriction of the manufacturer’s freedom to format the message concerning the product.

The company maintained that the naming “9%” on the front of the can did not infringe the Code. They said they would like to continue to communicate that information, also because they wanted to allow consumers to have a choice in the diverse offer of beer, including both light, mainstream, strong and super strong lagers.

The company said that they were planning to modify the packaging to add the message “the can contains more than 1 recommended serving – drink responsibly and do not abuse alcohol”. The company said that, after looking at products from other manufacturers in other markets, they planned to add ‘vol.’ or ‘alc.’ after “9%”, to make it clear that this information concerned alcohol strength. They said they also planned to add “best served shared”, which they said was a common and approved market practice. After receiving the Panel’s provisional decision, the company said they were planning to change the packaging and asked to meet the Panel in person to discuss their new design. They explained that they were also making changes to the whole Karpackie product line, to meet the requirements of new European legislation. They sent an initial design for the new packaging and asked for the Panel to delay their final decision by three or four months.

The Panel’s assessment

The Panel noted the Advisory Service’s guidance for the new Code, which they had seen and discussed at a previous meeting, and in particular the guidance that:

containers which are typically single-serve, and whose contents are typically consumed by one person in one sitting, should not contain more than four units. This position has received support from the CMO’s and the Department of Health and Social Care (DHSC) as an appropriate threshold to help reduce alcohol-related harms.

The Panel considered that single-serve containers containing more than four units of alcohol risked encouraging immoderate consumption; they noted that research had found consumers regarded 500ml cans as single-serve products. The Panel noted this product stated it contained 4.5 units of alcohol. They also noted the packaging included the Chief Medical Officer’s weekly consumption guidelines and the drinkaware.co.uk address and but considered that this information was inconspicuous and printed in small type.

The Panel considered that because the container was not resealable, was of a type typically consumed by one person in one sitting and contained 4.5 units, the product was likely to encourage immoderate consumption. The Panel acknowledged the company’s intention to add a sharing message to the can in the future, but noted that it was considering the product as it was currently packaged.

The Panel also discussed whether the packaging gave undue emphasis to the strength of the product, which they noted was higher than the average strength for the lager category. The Panel acknowledged that producers needed to communicate the strength of their products and to differentiate products within the same range, which was useful information for the consumer. The Panel considered, however, that incorporating the ABV into the brand name of a product, when it was higher than the average strength for the category, risked giving undue emphasis to the strength. The Panel therefore gave careful consideration to the presentation of strength on this product. They noted that “9%” appeared in large red type and considered that it was a prominent element of the design, and the most prominent text on the can. They noted that other products in the Karpackie range had a similar design but were differentiated by name, whereas this product variant was differentiated with a number. The Panel considered that it would be possible to refer the higher strength with phrases such as “extra strong” or “import”, which they believed would indicate to consumers that the product was stronger than others in the same brand family without giving undue emphasis to the higher strength. The Panel was concerned that highlighting “9%” in prominent red type emphasised the higher strength, and was further concerned that this might appeal particularly to those who were vulnerable, in this case because of their drinking. The Panel noted that for the first time, the introduction to the new Code referred to consumers who may be vulnerable. They concluded that this presentation went beyond giving factual information and gave undue emphasis to the higher strength of the product.

The Panel acknowledged that the company was based outside the UK and may have been unaware of the Code, or the advice available through the Portman Group’s Advisory Service, when they designed the packaging. The Panel welcomed the company’s willingness to make changes to bring their product into line with the Code and noted they were planning to redesign their packaging across the Karpackie product line in the near future. The Panel confirmed that its decision related to the version of the packaging that the complainant had identified, however, and was not able to comment on the proposed redesign.

The Panel concluded that the packaging of this product breached Code rules 3.2(a) and 3.2(f).

Action by Company:

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