Producer:

Tiny Rebel

Complaint:

 ‘Our first concern is that the name of the product links the product to sexual activity or seduction. ‘Bump ‘n’ Grind’ is a commonly known slang term for “a dance in which people move parts of their body, especially their hips, together in a sexually exciting way.”  The name has also been used as the title of several songs and albums (the most well-known being by the R&B artist R. Kelly), the lyrics and videos for which are highly sexually suggestive. The promotion of this product on Facebook compounds this association with sexual activity as it refers to the context of a party, using terms such as ‘party time’ and ‘dancing our way through’.

We therefore believe that the name of this product and Facebook advert, specifically a sponsored post, identified on the 21st of February 2021 (where packaging is shown) is in breach of the following code:

3.2(d) – A drink, its packaging or promotion should not suggest any association with sexual activity or sexual success.

Our second concern pertains to the packaging design of the product and the potential appeal to those under the age of 18. We believe the colour scheme, font and teddy bear imagery of the product raise concerns. Specifically, the colours used on the packaging combined with the primary colours in the background of the ad, along with the bear icon give a very youthful feel and may appeal to those under the legal drinking age, specifically teenagers. We also consider that the above elements, alongside the package shape and size could cause confusion with soft drinks. We are aware that you have been found in breach of the Portman Group Code of Practice due to a similar combination on the packaging of another product (Cwtch). We therefore think that this product is in breach of the following code:

Rule 3.2(h) A drink, its packaging or promotion should not have a particular appeal to under-18s.’

Complainant:

Alcohol Focus Scotland

Decision:

Under Code paragraph 3.2(d)

A drink, its packaging or promotion should not suggest any association with sexual activity or sexual success; Strong sexual images will breach the Code even if nothing directly suggests that the drink enhances the drinker’s sexual capabilities.

UPHELD

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)

NOT UPHELD

The company’s submission

The company said it took its responsibility as an alcohol drinks brand very seriously and never set out to cause offence to any consumer, trade association or charity with the naming, branding or marketing of its products.

The company said after carrying out its own due diligence it did not agree that the product breached Code rules 3.2(d) and 3.2(h).  However, after considering the complainant’s concerns the company believed that the responsible thing to do was to discontinue the product with immediate effect.

The company said that it would continue to carry out its own internal due diligence and work with the Portman Group’s Advisory Service, when necessary, prior to launching any new products into the market.

The Panel’s assessment

Code paragraph 3.2(d)

The Panel noted the complainant’s concern about content on the company’s Facebook page but stated that this marketing fell outside the scope of the Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks and fell within the remit of the Advertising Standards Authority instead. The Panel therefore considered the overall impression conveyed by the product packaging and the product name and whether the product implied any association with sexual activity or sexual success.  The Panel discussed the name Bump ‘n’ Grind and noted that this could refer to a sexually suggestive style of dancing and also acknowledged that it was used as a slang term for sexual intercourse.  The Panel noted that the can itself did not feature any other imagery or language that exacerbated the association with sexual activity and considered that it was the product name alone that raised concerns under Code paragraph 3.2(d).

After discussing various interpretations of the phrase “bump ‘n’ grind”, the Panel considered that the acceptability of the product name depended on broad understanding of the terminology.   Regardless of context, the Panel agreed that the phrase had strong sexual connotations, whether it was taken to refer to dancing, to the associated R Kelly song or as a direct reference to sex, and the Panel believed that consumers would interpret the name as a sexual reference.  The Panel discussed the wording of Code paragraph 3.2(d) and noted that the rule prohibited any association with sexual activity, whether it be direct or indirect.  The Panel therefore concluded that the product name Bump ‘n’ Grind suggested a direct association with sexual activity and accordingly upheld the complaint under Code paragraph 3.2(d).

Code paragraph 3.2(h)

The Panel then discussed the product under Code paragraph 3.2(h).  The Panel noted the complainant’s concerns that the colour scheme, font and teddy bear imagery, together with the size and shape of the can, created a particular appeal to under-18s.

The Panel considered that the fonts used on the can were not particularly childish.  The Panel noted the Bump ‘n’ Grind product name was displayed in block capitals and considered that, although there was a ‘drip’ effect on some of the letters, the font did not resemble graffiti writing sometimes associated with youth culture.

The Panel disagreed with the complainant’s view that the can featured ‘primary colours’ and considered that the colour scheme was more pastel in tone.  The Panel noted it had previously upheld complaints about products with bright, high-contrast colours, and had stated that those colour schemes could have a particular appeal to under-18s.  The Panel acknowledged that pastel colour schemes were also commonly used for products targeted at young girls but considered that, on this product, the pastel colours formed abstract imagery with geometric shapes and dabs of paint, rather than images that were likely to have a particular appeal to children, and were relatively recessive within the overall design. The Panel considered that the colour scheme did not, in this context, create a particular appeal to under-18s.

The Panel considered whether there were other elements of the design that had a particular appeal to under-18s.  The Panel noted that the can included references to fruit flavours, including the product description on the front of the can ‘Mango and Ginger L’il Pale India Lager’, text on the back of the can that stated ‘Loaded with mango and a hint of ginger’ and a text box on the back of the can that stated ‘TASTE: TROPICAL / LEMON’.  The Panel noted, however, that the can did not include fruit imagery or other brand messaging associated with soft drinks.  The Panel considered that the references to fruit flavours, in this context, were acceptable descriptions of the taste of the product and were unlikely to create confusion with soft drinks appealing to under-18s.

The Panel also noted the complainant’s concern that the 330ml can size might contribute to an appeal to under-18s.  The Panel considered that alcohol products in 330ml cans often had to work harder to avoid confusion with soft drinks, as it had stated in several previous decisions.  The Panel emphasised that it considered every product on its own merits and noted that 330ml cans were not inherently problematic under the Code.  In the absence of other elements which may have suggested that Bump ‘n’ Grind was a soft drink suitable for under-18s, the Panel considered that the 330ml can size did not contribute, in this case, to a particular appeal to under-18s.

Finally, 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 considered 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 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 Bump ‘n’ Grind can.  The Panel considered that the bear, in this particular context, 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 and also noted that there were no other elements on the can which it believed created a particular appeal to under-18s.

After considering the imagery, colours, font, 330ml can size and fruit references in combination with the bear logo, the Panel considered that the overall impression conveyed by the product did not have particular appeal to under-18s and accordingly did not uphold the complaint under Code rule 3.2(h).

Action by Company:        

Product withdrawn.

Producer:

Tiny Rebel

Complaint:

“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”.

Complainant:

Metropolitan Police

Decision:

Under Code paragraph 3.1

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

NOT UPHELD

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)

NOT UPHELD

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:

None required.

Producer:

Tiny Rebel

Complaint:

“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.

Complainant:

Member of the public

Decision:

Under Code paragraph 3.1

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

UPHELD

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)

UPHELD

The company’s submission

The company stated that it took all consumer complaints very seriously. The company stated that after carrying out internal due diligence on the product, it had concluded that the product potentially breached Code rule 3.2(h). The company explained that it had discontinued the product with immediate effect (18th May 2021). The company stated that in the future it would endeavour to carry out its own internal due diligence and work with the Portman Group’s Advisory Service, when necessary, prior to launching any new products on the market.

The Panel’s assessment

Code Rule 3.1

The Panel first considered whether the packaging communicated the alcoholic nature of the drink with absolute clarity.

The Panel considered the overall impression of the 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 ‘CHERRY SOUR 5% ABV’, which was relatively visible and prominent on the front of the can, with white text on a dark red background. The Panel considered that the back of the can had some positive alcoholic cues including the unit content of the can, the alcoholic strength by volume and the pregnancy warning logo. However, the Panel considered that ‘CHERRY SOUR’ did not clearly identify the contents as alcoholic and noted that the can did not feature other descriptors, such as ‘beer’ or ‘ale’, that would unambiguously identify the contents as alcoholic.

The Panel then considered the negative cues on the can which could lead to consumer confusion about the alcoholic content of the product. The Panel noted that the front of the packaging featured cartoon-like illustrations of cherries with big smiles and legs, ‘splat’ marks and the ‘cherry bomb’ name in large white cursive bubble writing with a drip effect, which the Panel considered could be seen as reminiscent of a soft drink when considered together. The Panel also noted that large text on the back of the can read ‘Cherry Bomb cherry che-rry cher-ry cherry’ alongside text boxes, shaped like drops, that stated ‘EYE: RED’, ‘NOSE: CHERRY DROPS’ and ‘TASTE: CHERRY DROPS’. The Panel noted ‘cherry drops’, and ‘cherry sours’, were names for sweets. The Panel considered that the prominent ‘fruit’ and ‘sweet’ messaging made non-alcoholic messaging a dominant theme of the product.

The Panel concluded that the negative cues in conjunction with the size of the can (330ml), which could also be associated with soft drinks, was problematic. The Panel concluded that taking the overall impression of the packaging, the product breached Code rule 3.1 and accordingly upheld the complaint.

The Panel reminded producers that any alcohol packaging which contained negative cues that might detract from the alcoholic nature of a product such as cartoon-like illustrations and references to sweets, needed to work harder to ensure that the alcoholic nature was communicated with absolute clarity.

Code Rule 3.2(h)

The Panel noted that the company had decided to withdraw the Cherry Bomb packaging with immediate effect, because the company believed it potentially breached Code rule 3.2(h), and welcomed its decision to do so.

The Panel nonetheless considered whether the packaging was in breach of Code rule 3.2(h). The Panel considered the artwork on the front of the can and noted that this included cartoon-like illustrations of cherries with big smiles and legs and white cursive bubble writing which was reminiscent of font used on sweets. The Panel considered the product name and noted that this was presented with other phrases on the back of the can in larger font such as ‘cherry drop’. The Panel emphasised that care should be taken when naming a product, or the product flavour, after well-known sweets/confectionery. The Panel considered that ‘Cherry drops’ were well-known sweets. The Panel concluded that such phrases were not typically associated with alcohol and was concerned that when used in combination with cartoon illustrations and childish font styles they were likely to have a particular appeal to under-18s.

The Panel noted 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 considered the two previous precedents where it had had considered 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 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 a particular appeal to under-18s in the context of the Cherry Bomb can. The Panel considered that the cumulative effect of the cartoon-style imagery, childish font, confectionary elements of the name and description on the can, and the bear logo, meant that the product had a particular appeal to under-18s and accordingly upheld the complaint under Code rule 3.2(h).

Action by Company:

Product has been discontinued by the company.

Producer:

Tiny Rebel

Complaint:

“We have had the below concerns raised to our department via another Police

Officer regarding the labelling 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’’

Complainant:

Metropolitan Police

Decision:

Under Code paragraph 3.1

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

NOT UPHELD

Under Code paragraph 3.2(e)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that consumption of the drink can lead to social success or popularity.

NOT UPHELD

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)

NOT UPHELD

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.

NOT UPHELD

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 Panelbase 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 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 (including Clwb Tropica) 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 researchers 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 Clwb Tropica) 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 showedthat:

• 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 wouldunderstand 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 (which included Clwb Tropica) 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 Clwb Tropica) 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, and noted that, out of 20 products, the two Tiny Rebel products (including Clwb Tropica) were two of only four products to clearly state their alcoholic content 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. It said Clwb Tropica did not make reference to fruit, milkshakes nor cartoons.

The Executive Summary concluded by stating that, based on this research, Clwb Tropica did not show to have a ‘particular appeal’ to under 18s, it appeared to have universal appeal. It said 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 researchers recommended that any decision the Panel made with regards to Clwb Tropica needed to consider the category as a whole, to recognise that it did clearly state its alcoholic content on the front of the can. The report also said it was clear decisions on specific ‘child-like’ appeal were subjective and the view of the individual, and recommended any decisions relating to Clwb Tropica take the findings of this research into account, and in the context of the whole category to avoid any unfair discrimination.

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’ and asked to select up to five of their favourite designs. This research found that the Clwb Tropica 330ml can ranked as the fourth most appealing design for 16-17 year olds and the fourth most appealing design for over 18s. The report stated the research showed that there was very little variation in the appeal of can designs between age groups; the researchers suggested the Clwb Tropica 330ml can was not seen as particularly more appealing to under 18s as it was to those aged 18 and over.

One section of the research focused on the appeal of Clwb Tropica (and another of the company’s products), in comparison with products made by other companies. The report stated that, based on initial impressions on the shop shelf, the research showed

• 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
• Clwb Tropica was an appealing design (in the top 6) but was equally appealing to both age groups.

The report included a section on the appeal of the Tiny Rebel bear logo. It said the bear logo was not mentioned spontaneously 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 researchand 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.

The Panel discussed the Clwb Tropica can at the same meeting as the Clwb Tropica Four Pack, which had received a separate complaint from a different complainant.

Code Rule 3.1

The Panel first considered whether the product communicated its 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 text box that read ‘TROPICAL IPA 5.5% ABV’, which was well demarcated and prominent on the front and centre of the can, with clearly legible white text on a black background. The Panel considered that ‘5.5% ABV’ was a strong ‘positive’ cue that the product contained alcohol. The Panel considered that IPA was widely recognised by beer drinkers as an alcoholic signifier but that it was potentially less well understood by consumers outside the target market. The Panel discussed the research report submitted by the company and noted this view was supported by the research report, which reflected that only 16% of 16–17-year-olds understood the term “IPA”, which was significantly lower than the proportion of 16–17 year-olds who knew what “ale” meant. The Panel re-emphasised the previous caution it had stated at the beginning of the discussion about the research report and also noted that the can did not heavily feature language strongly associated with beer by general audiences, such as ‘brewery’, ‘beer’ or ‘ale’, and considered that the product could make the alcoholic nature of the drink more conspicuous by including unambiguous references to beer that the majority of consumers were likely to understand.

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 can included references to ‘TROPICAL’, on the front of the can, and ‘NOSE: MANGO/PINEAPPLE’ and ‘TASTE: TROPICAL’ on the back of the can, and considered that references to fruit tastes that could be associated with soft drinks, particularly when considered alongside the product name ‘Clwb Tropica’. The Panel also noted, however, that the back of the can featured alcohol-related health information, including the pregnancy warning logo and the unit content of the can, as well as legally required information such as ‘ALC 5.5% VOL’.

After a lengthy discussion, the Panel considered that the fruit references were not so prominent that they outweighed the positive alcoholic cues on the can and concluded that an average consumer was still likely to ascertain that the product was alcoholic.

When considering the overall impression created by the product, the Panel found that the clear statement ‘5.5% ABV’ on the front of the can, together with the alcohol-related health information and legal labelling information on the back of the can were sufficient to communicate the alcoholic nature of the drink with absolute clarity. Accordingly, the Panel did not uphold the product under Code Rule 3.1.

Code Rule 3.2(h)

The Panel then discussed whether the product 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 design featured bright colours with splashes of white, a product name and an overall design feel that, on the face of it, could be seen to resemble soft drink packaging. The Panel considered, however, that the colour scheme was not overly vibrant and reflected the edgy marketing that the company was likely aiming for. The Panel noted that the overall design was based on an 80s Club Tropicana nostalgia-theme and that this was particularly noticeable in the font and colour choice. The Panel debated the ‘particular’ aspect of Code Rule 3.2(h) and stated that the link with 80s nostalgia meant that the product was likely to resonate with an adult market.

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 Clwb Tropica can. The Panel considered the adult-based 80s nostalgia Club Tropicana theme, the fact that the product communicated its alcoholic nature with absolute clarity and noted that the Clwb Tropica 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.

After considering the name, imagery, colours, 330ml can size in combination with the the bear logo, the Panel considered that the overall impression did not have particular appeal to under-18s and accordingly did not uphold the product under Code Rule 3.2(h).

Code Rules 3.2(e) and 3.2(j)

During discussion, the Panel noted that the back of the can featured the phrase ‘Clwb Tropica a party in a can’. The Panel discussed whether this could suggest that consumption of Clwb Tropica could lead to social success or change mood or behaviour. Some Panel members were concerned that ‘party in a can’ equated the beer with the party. However, the Panel noted there were no other ‘party’ references on the can. The Panel considered that the phrase could be problematic, if it featured more prominently or was combined with other elements to make it a strong theme in the product branding. In this case, however, the Panel considered that the  presentation of the phrase on this can did not breach Code Rules 3.2(e) or 3.2(j).

Action by Company:

None required.

Producer:

Tiny Rebel

Complaint:

“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.

Complainant:

Member of the Public

Decision:

Under Code paragraph 3.1

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

NOT UPHELD

Under Code paragraph 3.2(e)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that consumption of the drink can lead to social success or popularity.

NOT UPHELD

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)

UPHELD

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.

NOT UPHELD

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 Panelbase 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 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 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 (including the Clwb Tropica 330ml can but not the four pack box) 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 Clwb Tropica) 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 (which included the Clwb Tropica 330ml can but not the four pack box) 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 Clwb Tropica) 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 not 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, and noted that, out of 20 products, the two Tiny Rebel products (including the Clwb Tropica 330ml can) were two of only four products to clearly state their alcoholic content 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. It said Clwb Tropica did not make reference to fruit, milkshakes nor cartoons.

The Executive Summary concluded by stating that, based on this research, the Clwb Tropica can did not show to have a ‘particular appeal’ to under 18s, it appeared to have universal appeal. It said 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 researchers recommended that any decision the Panel made with regards to Clwb Tropica needed to consider the category as a whole, to recognise that it did clearly state its alcoholic content on the front of the can. The report also said it was clear decisions on specific ‘child-like’ appeal were subjective and the view of the individual, and recommended any decisions relating to Clwb Tropica take the findings of this research into account, and in the context of the whole category to avoid challenge of any unfair discrimination.

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’ and asked to select up to five of their favourite designs. This research found that the Clwb Tropica 330ml can ranked as the fourth most appealing design for 16-17 year olds and the fourth most appealing design for over 18s. The report stated the research showed that there was very little variation in the appeal of can designs between age groups; the researchers suggested the Clwb Tropica 330ml can was not seen as particularly more appealing to under 18s as it was to those aged 18 and over.

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.

The Panel discussed the Clwb Tropica can at the same meeting as the Clwb Tropica Four Pack, which had received a separate complaint from a different complainant.

Code Rule 3.2(h)

The Panel carefully considered whether the Clwb Tropica Four Pack box had a particular appeal to under-18s. The Panel noted that the box was presented as a cube, with each of the six square sides divided into nine smaller panes and considered that the overall design resembled a toy Rubik’s cube. The Panel stated that a Rubik’s cube could be classified as a toy puzzle that today’s adults remembered from their childhood and considered that Rubik’s cubes were currently of interest to both adults and children. The Panel considered, however, that replicating the style of a well-known toy in the product design heightened the potential to create a particular appeal to under-18s.

The Panel noted many other aspects of the design repeated the themes from the Clwb Tropica can. The Panel noted the bright colours but considered that the colour scheme was relatively muted and not overly vibrant. The Panel considered that the overall design was based on an 80s Club Tropicana nostalgia-theme and that this was particularly noticeable in the font and colour choice, particularly when the Rubik’s cube imagery was used together with the colour scheme and graphic design. The Panel debated the ‘particular’ aspect of Code Rule 3.2(h) and stated that the link with 80s nostalgia meant that some aspects of the product design were likely to resonate with an adult market.

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 (2014) 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 overalll 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 Clwb Tropica Four Pack box.

The Panel considered that the bear logo featured more prominently on the Clwb Tropica four pack box than on the Clwb Tropica can. The Clwb Tropica Four Pack box included the bear logo alongside a text panel stating ‘TROPICAL IPA 5.5%’, as did the Clwb Tropica can, and in this placement the Panel considered that it was acceptable under the Code. The Panel noted, however, that one side of the box said ‘tear for bear’ with an arrow pointing to a larger illustration of the bear, which ran over two of the nine squares on the side of the box. The perforated strip to open the box ran round the bear, making the bear an interactive feature and a focal point of the design. The Panel considered that, whilst the core Clwb Tropica imagery was acceptable on its own, the four pack box included additional design elements that meant the bear logo was an integral part of the marketing and had become more than just the corporate logo. The Panel considered that the Rubik’s cube theme, the large prominent image of the bear logo, the tear strip that focused attention on the bear illustration meant that the Clwb Tropica Four Pack box had a particular appeal to under-18s. Accordingly, the Panel upheld the product under Code Rule 3.2(h).

Code Rule 3.1

The Panel considered whether the product communicated its 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 secondary packaging featured a text box that read ‘TROPICAL IPA 5.5% ABV’, which was well demarcated and prominent on the front and centre of the secondary packaging, with clearly legible white text on a black background. The Panel considered that ‘5.5% ABV’ was a strong ‘positive’ cue that the product contained alcohol. The Panel considered that IPA was widely recognised by beer drinkers as an alcoholic signifier but that it was potentially less well understood by consumers outside the target market. The Panel discussed the research report submitted by the company and noted this view was supported by the research report, which reflected that only 16% of 16–17-year-olds understood the term “IPA”, which was significantly lower than the proportion of 16–17-year-olds who knew what “ale” meant. The Panel re-emphasised the previous caution it had stated at the beginning of the discussion about the research report but also noted that the back of the secondary packaging featured alcohol-related health information, including the pregnancy warning logo, the don’t drink and drive logo, the unit content of the primary packaging can inside the box, a ‘please drink responsibly’ message as well as legally required information such as ‘ALC 5.5% VOL’. The Panel considered that the number of positive visual alcohol cues on the secondary packaging were significant and communicated the alcoholic nature of the product with absolute clarity. Accordingly, the Panel did not uphold the product under Code Rule 3.1.

Code Rules 3.2(e) and 3.2(j)

During discussion, the Panel noted that the back of the secondary packaging featured the phrase ‘Clwb Tropica a party in a can’. The Panel discussed whether this could suggest that consumption of Clwb Tropica could lead to social success or change mood or behaviour. Some Panel members were concerned that ‘party in a can’ equated the beer with the party. However, the Panel noted there were no other ‘party’ references on the secondary packaging. The Panel considered that the phrase could be problematic, if it featured more prominently or was combined with other elements to make it a strong theme in the product branding. In this case, however, the Panel considered that the presentation of the phrase on this secondary packaging did not breach Code Rules 3.2(e) or 3.2(j).

Action by Company:

Working with the Portman Group’s Advisory Service.

Producer:

Tiny Rebel

Complaint:

“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.

Complainant:

Member of the public

Decision:

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)

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 explained that it took all consumer complaints very seriously and after carrying out its own due diligence on the product, did not agree that the product was in breach of Code rule 3.2(h). The company stated that ice cream had mass appeal, whether it was in a bar, cone, on a stick or in a tub. The company enclosed a link to a marketing magazine article on the ice cream sector to support this statement.

The Panel’s assessment:

Code Rule 3.2(h)

The Panel first considered whether the product had a particular appeal to under-18s. The Panel noted that the product name, Double 99, referred to a well-known ice cream and that the front of the can also included the description ‘CHOCOLATE FLAKE SOFT SERVE IMPERIAL STOUT 9.9% ABV’. The Panel noted that the product imagery built on the ice cream theme, with a stylised illustration of a soft serve ice cream with two chocolate flakes wrapped round the can and wafer-effect cross hatching around the bottom.

Some Panel members considered that the ice cream illustration was very large and stylised, so that it was not immediately obvious that it depicted ice cream. The Panel also noted that the chocolate flakes were at the side of the can and not immediately identifiable when the front of the can was facing forward. The Panel acknowledged that ice cream in general, and a ‘99’ ice cream in particular, appealed to all age groups. The Panel reiterated its view, however, that alcohol products featuring confectionary flavours, names or imagery needed to work harder to avoid having a particular appeal to under-18s. The Panel considered that, even though the imagery was highly stylised and did not create a strong visual ‘ice cream’ cue in itself, the product name made a very overt link with ice cream, particularly when taken in combination with the imagery.

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 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 Double 99 can. The Panel considered the overall impression created by the Double 99 can and noted that the colour scheme was muted and the design did not include child-like elements such as bright colours or typefaces that may particularly resonate with children. The Panel considered, however, that the dominant theme of ice cream, combined with the bear  logo on the front of the can, meant that the overall impression conveyed by the product packaging did create a particular appeal to under-18s. Accordingly, the Panel upheld the complaint under Code Rule 3.2(h).

Code Rule 3.2(f)

The Panel noted that the product was a 440ml size can with an ABV of 9.9% which equated to 4.4 units in a container. The Panel noted that the Portman Group’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks did not define ‘immoderate consumption’ as part of Code rule 3.2(f).

The Panel considered non-binding guidance to the rule issued by the Portman Group’s Advisory Service which stated that:

The Advisory Service recommends 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, and as a pragmatic and responsible industry approach in the absence of national daily guidelines.

The Panel noted that it had decided in 2020 that the packaging of Oranjeboom 8.5% (4.25 units) and Karpackie 9% (4.5 units) encouraged irresponsible consumption contrary to rule 3.2(f). It noted that the guidance continued:

Having more than four-units in a single-serve container will not automatically result in a product being found in breach of the Code; it is the view of the Advisory Service that the Panel is likely to take other factors into account when determining whether a product encourages immoderate consumption. It is not possible to produce an exhaustive list of mitigating factors but the Panel may consider: whether the container contained a ‘share’ message or a ‘per serve’ recommendation, how easily the container could be resealed, whether the producer was able to demonstrate that the contents were shared (by decanting) or typically consumed over more than one sitting, the premium status/quality of the product and its positioning in the market including the price at which it is generally sold, alcohol type (does the product degrade quickly once opened) and the overall impression conveyed by the product packaging (such as terminology used in the name and product description). The mitigating factors should be commensurate with the number of units (above 4 units) in the single-serve container. The Panel is also likely to take into consideration whether the packaging contains responsibility messaging, for example, the number of units in the container and a reference to the Drinkaware website.

The Panel considered whether consumers were likely to regard it as a single-serve container to be consumed by one person in one sitting. The Panel considered that, because the can was not easily resealable and research showed consumers typically regarded cans as intended for consumption by one person in one sitting, it was likely to be seen as a single-serve container. The Panel acknowledged that a single-serve non-resealable container which contained more than 4 units of alcohol was not the only factor to be assessed when determining whether a product encouraged immoderate consumption and therefore analysed the product for mitigating factors that could reduce the risk of encouraging immoderate consumption, such as a recommendation to share the contents, per-serve messaging or information about responsible drinking. The Panel noted that the ABV was clearly displayed on the front of the can and that the back of the can stated that the product contained 4.4 units. However, the Panel also noted that the can did not include responsible drinking messaging such as the UK Chief Medical Officers’ Low Risk Drinking Guidelines, sharing message or a suggestion that the can should be consumed as two servings. The Panel noted that the product was a relatively strong beer that had been used in combination with a Double 99 ice cream theme found to have a particular appeal to under-18s, which itself raised issues under Code clause 1.1 (social responsibility). After considering all the features of the packaging, the Panel concluded that the product encouraged immoderate consumption. Accordingly, the Panel upheld the complaint under Code Rule 3.2(f).

Action by Company:

Working with the Portman Group’s Advisory Service.

Producer:

Tiny Rebel

Complaint:

“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.

Complainant:

Member of the public

Decision:

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)

UPHELD

The company’s submission

The company stated that it took all consumer complaints very seriously. The company stated that after carrying out internal due diligence on the product, it had concluded that the product potentially breached Code rule 3.2(h). The company explained that it had discontinued the product with immediate effect (18th May 2021). The company stated that in the future it would endeavour to carry out its own internal due diligence and work with the Portman Group’s Advisory Service, when necessary, prior to launching any new products on the market.

The Panel’s assessment

The Panel noted that the company had decided to withdraw the No Capes packaging with immediate effect, because the company believed it potentially breached Code rule 3.2(h) and welcomed its decision to do so.

The Panel nonetheless discussed whether the packaging was in breach of Code rule 3.2(h). The Panel considered the artwork on the front and back of the can. The Panel observed that the cartoon imagery was reminiscent of comic book strips and superhero movies. The Panel discussed the appeal of these images to those under-18 years of age. The Panel considered that such themes and similar comic book style illustrations had broad appeal to both adults and under-18s but could, in some contexts, have a particular appeal to under-18s.

The Panel analysed the overall impression conveyed by the product and noted that the narrative portrayed the misadventures of various superheroes on both sides of the can. The Panel noted that one side of the can featured cartoon imagery which portrayed a superhero getting their cape caught in an airplane engine, another caught in a car door with their trousers falling down and another being sucked into a tornado. The Panel noted that the other side of the can featured various superheroes in similar states of peril with one superhero’s cape being caught by a shark, another stuck in a series of cogs and one superhero with a looming green hand behind it. The Panel discussed the comic book strip nature of the illustrations and considered that the childish humour enhanced the illustrations’ particular appeal to under-18s.

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 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 No Capes can. The Panel noted that the immature nature of the cartoon illustrations were likely to have a particular appeal to under-18s and this appeal was only enhanced when considered alongside the bear logo and accordingly upheld the complaint under Code rule 3.2(h).

Action by Company:

Product has been discontinued by the company.

Producer:

Tiny Rebel

Complaint:

“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.

Complainant:

Member of the public

Decision:

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)

UPHELD

Under Code paragraph 3.3:

A drink’s name, its packaging and any promotional material or activity should not cause serious or widespread offence.

UPHELD

The company’s submission

The company stated that it took all consumer complaints very seriously. The company stated that after carrying out internal due diligence on the product, it had concluded that the product potentially breached Code rule 3.2(h). The company explained that it had discontinued the product with immediate effect (18th May 2021). The company stated that in the future it would endeavour to carry out its own internal due diligence and work with the Portman Group’s Advisory Service, when necessary, prior to launching any new products on the market.

The Panel’s assessment

Code Rule 3.2(h)

The Panel noted that the company had decided to withdraw the Original Nuttah packaging with immediate effect, because the company believed it potentially breached Code rule 3.2(h) and welcomed its decision to do so.

The Panel nonetheless considered whether the packaging was in breach of Code rule 3.2(h). The Panel considered the artwork on the front and back of the can. The Panel noted that the can used a pastel colour palette with a yellow base and a pink paint splodge behind the name ‘Original Nuttah’. The Panel considered that pastel colours were not necessarily problematic under the Code in isolation but the softer nature of the colours that could be associated with some childhood themes needed to be considered carefully alongside other factors on the product packaging.

The Panel observed that the front of the can featured illustrations of acorn or nuts, with cartoon eyes and mouths that appeared to be ‘flying’. Some of the nut characters had one eye larger than the other, or one eye crossed out, or tongues poking out. The Panel considered that the acorns had been stylised so that they appeared as ‘cheeky’ cartoon illustrations which were likely to have an appeal to under-18s.

The Panel carefully considered the use of the bear on the packaging. 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 considered 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 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 Original Nuttah can. The Panel noted that that, due to the colour palette used, the bear was fairly prominent on the front of the can. The Panel considered that, when taken in combination, the pastel colour palette, cartoon acorn/nut illustrations and fairly prominent bear logo were likely to have a particular appeal to under-18s and accordingly upheld the complaint under Code rule 3.2(h).

Code Rule 3.3

The Panel considered whether the packaging caused serious or widespread offence based on the product name. The Panel considered the need to distinguish whether the overall impression conveyed was distasteful or whether it was likely to cause serious or widespread offence and observed the need to strike a balance between phrases that may cause some annoyance compared to those which could be considered seriously offensive. The Panel considered that ‘nutter’ was a derogatory term referring to those who suffered from mental illness. The Panel noted that ‘Original Nuttah’ was the title of a song but considered that the average consumer was unlikely to make a connection with the song and was more likely to interpret the product name as a reference to ‘nutter’, particularly when portrayed alongside cartoon acorns/nuts that were exhibiting frenzied behaviour. The Panel referred to the guidance note for the rule and noted that the rule prohibited marketing that was discriminatory and prevented derogatory and demeaning marketing that was seriously offensive.

The Panel considered that the name of the product was derogatory and demeaning and was likely to cause serious offence to some consumers. Accordingly, the Panel upheld the complaint under Code rule 3.3.

Action by Company:

Product has been discontinued by the company.

American Dream

Producer:

Mikkeller

Complaint:

“We have had the below concerns raised to our department via another Police Officer regarding the labeling (sic) of the following drinks:

[redacted] Mikkeller – Side Eyes and American Dream both showing cartoon characters. 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

Complainant:

Metropolitan Police

Decision:

Under Code paragraph 3.1

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

NOT UPHELD

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)

NOT UPHELD

The company’s submission

In response to the complainant’s claim that the product did not comply with rule 3.1 of the Code, the company stated that it did not agree. The company explained that it was easy for a consumer to quickly ascertain that the drink contained alcohol as the can had the alcohol by volume (ABV) clearly marked on the can, along with a list of other ingredients and an indication that the drink was ‘brewed’. The company also highlighted that the top of the can included ‘Extra Dry-Hopped’ in capital letters as well as ‘American Dream Pils’ and that the side of the can included ‘Extra Dry-Hopped Pilsner’ which were all well-known terms for beer. The company stated that the design of the label was not overly busy, and this ensured the alcoholic nature of the product was communicated with absolute clarity.

In summary, the company stated that there were several cues on the packaging that indicated the alcoholic nature of the product:

• The alcohol by volume was displayed in connection with the ingredients list;
• ‘Extra Dry-Hopped’, ‘American Dream Pils’ and ‘Extra Dry-Hopped Pilsner’, which were all commonly known as beer, appeared in capital letters on the top, front and side of the label;
• The word ‘beer’ was conveyed in different languages (including English);
• Barley malt, oat flakes, hops and yeast were all listed as ingredients which were commonly associated with beer;
• The label stated that the product was ‘brewed’;
• All of the information on the label was used in reference to an alcoholic drink and did not include any conflicting language or imagery.

The company then addressed the complainant’s concern that the product did not comply with rule 3.2(h) of the Code. The company stated that it had never been its intention for Side Eyes to appeal to under-18s and that the product had never been targeted at under-18s through its packaging, promotional material or any other activity. The company noted that the complainant had also stated that the drink was out of the reach of children.

The company explained that it had collaborated with the respected artist and designer, Keith Shore, who had developed a Mikkeller-universe which aimed to refresh the way beer was branded. The company explained that the colourful universe was introduced to make its products more appealing to more than just the typical beer consumer and to attract female consumers. The company stated that Mr Shore had created unique artwork for modern adult consumers and not cartoons that would have a particular appeal to children.

The company asserted that illustrated characters could also appeal to adults and highlighted that there were entire genres and styles that were geared towards adults, such as graphic novels and Japanese anime. The company stated that other beer companies also used illustrated characters as part of a self-taught style of art on packaging.

The company cited previous decisions made by the Independent Complaints Panel, including Keller Pils, Buoyancy Aid and Flamingo Tears Pink Grapefruit Gin, which it believed confirmed that illustrated characters were not in themselves a violation of Code paragraph 3.2(h). The company stated that the illustrations depicted on the packaging were not of particular appeal to children and reflected adult characters in a 1950s style. The company explained that the characters were styled in an ‘oddball’ manner and did not reflect a style that would be of particular appeal to people under the age of 25. The company further explained that the male character portrayed on the packaging wore a traditional hat, whilst the female character had big distinctive hair in a style that was unlikely to appeal to children. The company stated that the artwork used on the packaging was colourful and quirky, but not in a way which was likely to be of particular appeal to under-18s. The company reiterated that the characters were not reminiscent of children’s animation and were inspired by pop art and other modern art styles that would be of interest to adults and therefore directly targeted at that age group.

The company stated that all of the language used on the can was exclusively focused on communicating facts about the beer and did not adopt a tone of voice likely to be of particular appeal to under-18s. The company also highlighted that the font used on the can was neutral in style.

The company stated that the overall impression conveyed by the product did not lead it to have a particular appeal to children and concluded that it was not in breach of Code rule 3.2(h).

The Panel’s assessment

Code paragraph 3.1

The Panel first discussed whether the packaging communicated the alcoholic nature of the drink with absolute clarity. The Panel discussed the company’s response and explanation for the use of the brand imagery and labelling. The Panel considered the artwork that wrapped around three quarters of the can and the overall impression conveyed by the product packaging.

The Panel discussed the company’s response and noted that there were some discrepancies between the company’s description of positive alcohol cues and the information presented on the packaging that the company had sent for consideration.  The Panel noted that ‘India Pale Lager’ appeared on the top of the can and that ‘Extra Dry-Hopped’ on the side of the can but noted that there were no other references to beer in multiple languages as described by the company.  Whilst the Panel noted the discrepancies it concluded that this did not make a substantial difference to the overall impression conveyed by the packaging.

The Panel observed that the front of the can had minimal positive cues indicating alcoholic content and that it mainly comprised of the artwork that had been designed for the product. The Panel discussed the company’s submission but considered that the word ‘brewed’ could appear on soft drinks and the expansion of the alcohol-free market in the UK meant that this term alone could not be relied upon to communicate the alcoholic nature of a product.  The Panel went on to consider the overall impression conveyed by the can and noted the use of the phrase ‘India Pale Lager’ on the back label in the same field of vision as the alcoholic strength by volume (ABV). The Panel also noted that ‘Lager’ appeared in bold font around the top of the can and that this was a well-recognised term for an alcoholic beer.  The Panel discussed the company’s response that the product was sold on a retail shelf out of the reach of children and reminded producers that the positioning of a product in retail space did not fall within the regulatory remit of the Code and that the product had to be considered as though it could appear in a home environment.  The Panel noted that the product was not produced exclusively for the UK market and that the back of the label was therefore missing some positive alcohol cues that UK consumers would be familiar with, for instance, the product’s unit content, signposting to Drinkaware and the UK Chief Medical Officers’ Low Risk Drinking Guidelines.

The Panel debated at length the overall impression conveyed by the product and acknowledged that there was no distinction between the front and back of a product when determining the alcoholic nature of a product as an average consumer would pick up the product and assess it in its entirety.  The Panel noted that the can had complied with minimum legal requirements and that there was no contradictory language used on the product which may detract from the product’s alcoholic nature. Based on the overall impression conveyed by the product, the Panel concluded that the packaging did not breach rule 3.1.  The Panel, however, also agreed that the product could be clearer when communicating its alcoholic nature with absolute clarity and encouraged the producer to consider placing the ABV on the front of the label in the future.

Code paragraph 3.2(h)

The Panel then discussed whether the packaging was in breach of Code rule 3.2(h). The Panel discussed the artwork on the front of the can and noted that the colour palette was muted in tone and did not feature bright contrast colours. The Panel noted that while the artwork used bold lines, the artwork in this instance was focused on one character and the close-up nature of its presentation meant that it appeared stylised and abstract as opposed to cartoon-like.  The Panel considered that the abstract presentation meant that it was unlikely that the artwork would hold a particular appeal to under-18s, particularly when used alongside muted colours.

The Panel also discussed the presentation of the company’s brand logo which had a similar artistic style as the artwork on the front of the can and consisted of a dark line drawing. The Panel considered that the brand logo was quite prominent on the back of the can and discussed whether its prominence on the packaging could inadvertently become part of the brand narrative, rather than simply a corporate logo.  The Panel considered that in this context the company logo did not have a particular appeal to under-18s but urged caution of its use in the future depending on the overall impression conveyed by the rest of the product packaging and the prominence of the logo in this context.

The Panel concluded that the product did not have a particular appeal to under-18s and did not breach Code rule 3.2(h).

Action by Company:

None required.

Quickie!

Producer:

Some Young Punks

Imported by:

Matthew Clark Bibendum Ltd

Complaint:

‘‘Quickie by Young Punks, easily found on Google. For sale in Home Bargains stores and from wine merchants. Beer pump clips like this were eliminated some time ago, and just because this is wine, it shouldn’t be any different. This objectifying, sexual branding is outdated and offensive. Also “quickie” could be seen as encouraging fast consumption of the wine”.

Complainant:

Member of the public

Decision:

Under Code paragraph 3.2(d):

A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with sexual activity or sexual success.

UPHELD

Under Code paragraph 3.2(g):

A drink, its packaging and any promotional material should not in any direct or indirect way urge the consumer to drink rapidly or to ‘down’ a product in one.

NOT UPHELD

Under Code paragraph 3.3:

A drink’s name, its packaging and any promotional material or activity should not cause serious or widespread offence.

UPHELD

The company’s submission

In response to the complainant’s claim that the product did not comply with rule 3.2(d) of the Code, the company stated that the packaging for Quickie was a modified iteration of the 1950 novel ‘Quickie!’. The company explained that this was an illustrated novel by an author named Gerald Foster, that depicted a woman dressed in a well-covered negligee and a man dressed in a suit. The company stated that the people illustrated on the bottle were stylised in what could be classified as ‘retro’ pulp fiction images. The company emphasised the point that it was a 50’s style illustration that was depicted in a light-hearted manner.  The company further stated that the name ‘Quickie’ and associated verbiage could not reasonably be taken to suggest or encourage unwanted sexual advantages, not only in line with the colloquial expression, but also due to the fact that the woman’s name was clearly depicted as Quickie!. The company highlighted the phrase printed on the front of the label which stated ‘when there’s no time to think. There’s more time for love’ and explained that it did not promote sexual success as it was a light-hearted quip which was relevant in the context of the novel illustrations of the period. The company stated that it was of the view that there was nothing that showed that consumption of the wine led to sexual success in the pulp novel illustration.

In response to the complainant’s claim that the product did not comply with rule 3.2(g) of the Code, the company stated that as the imagery was devoid of the inclusion of alcohol it was not reasonable to draw a parallel between the title of the wine and rapid consumption.

In response to the complainant’s claim that the product did not comply with rule 3.3 of the Code, the company reiterated that the image was one that adorned a Pulp Fiction novel cover in 1950. The company stated that the imagery was not an actual picture, but an illustration that did not represent actual behaviour. The company stated that although the illustration depicted the possibility of a romantic situation, with a man in a suit and a woman fastening or unfastening her stocking, there was no suggestion alcohol had contributed to or heightened the interaction. The company acknowledged that there could be mild confusion about the label but emphasised that the tone and era of the label were correct and information about the background of the label was clearly explained on its website.

The company advised that it had discontinued the brand and packaging in 2018.  The company explained that it was a small independent wine brand based in Clare, South Australia and that it acted vigilantly in regard to its marketing and would never intentionally breach the Code.

The importer’s submission

The importer confirmed that it was the sole distributor of the product in the UK but did not hold the UK brand rights for it which remained with the producer, Some Young Punks.

The importer stated that it accepted that the product may not comply with rule 3.2(d). However, it did not believe that the product was in breach of rule 3.2(g) or rule 3.3. The importer explained that the company had advised that the branding was inspired by a pulp fiction novel called Quickie! and did not reference rapid consumption of a drink. The importer acknowledged that the brand name could be misconstrued if not viewed in the context of the original pulp fiction inspiration.

The importer confirmed that the product had been sold in the UK for the past three years and it had not received any other complaints related to the branding which suggested that it had not caused serious or widespread offence.

The importer also confirmed that the product had been discontinued and was therefore no longer in production.

The importer confirmed that it had shared the Portman Group’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks with its buying team and technical team to ensure that the teams understood the requirements of the Code of Practice. The importer stated that it took issues of this nature seriously and understood the importance of responsible marketing of alcoholic drinks.

The Panel’s assessment

Code rule 3.2 (d)

The Panel first discussed whether the packaging had directly or indirectly suggested any association with sexual activity or sexual success. The Panel discussed the company’s response and explanation for the use of the brand imagery and name. The Panel considered the imagery on the front of the product and the overall impression conveyed by the product packaging. The Panel discussed the illustration on the front of the bottle, which depicted a woman in a state of undress on a bed whilst looking back to a man dressed in a suit which suggested that a sexual encounter was imminent or had already occurred.  The Panel noted that the image depicted the woman in a highly sexualised manner. The Panel was also concerned about the imagery used in conjunction with the phrase ‘When there’s no time to think, there is time for love’, which when considered alongside the imagery, further linked the product to sexual behaviour. The Panel discussed the product name ‘’Quickie!’ and agreed that the use of the name in combination with the illustration and additional phrase, ‘Oh, what a gal was Quickie’, created a direct link to sexual activity. The Panel considered that the imagery, brand name and phrases on the packaging created a direct link to sexual activity and therefore concluded that the packaging breached rule 3.2(d).

Code rule 3.2 (g)

The Panel then discussed whether the packaging was in breach of rule 3.2(g). The Panel considered the complainant’s concern that the name ‘Quickie!’ encouraged fast consumption of the wine. The Panel discussed the name in isolation and agreed that it could be problematic when used on an alcoholic drink. However, the Panel noted that in this instance, the word ‘Quickie!’ had been used as a reference to sexual activity and that there was nothing else on the product packaging that encouraged rapid consumption of the product, either directly or indirectly. Based on the overall impression conveyed by the product, the Panel concluded that the packaging did not breach rule 3.2(g) but urged producers to think carefully when using such language on an alcoholic product.

Code rule 3.3

The Panel discussed whether the packaging caused serious or widespread offence. The Panel discussed the need to distinguish whether the overall impression conveyed was distasteful or whether it was likely to cause serious or widespread offence. The Panel considered the illustration on the front of the bottle and its depiction of the female and male characters. The Panel noted that the image of the woman was featured prominently on the packaging and placed unnecessary focus on the woman’s body in a sexualised manner. The Panel was concerned about the gratuitous use of the female form and considered that the imagery was problematic for its objectification of the woman based on her gender and sex.  The Panel was also concerned that the illustration depicted a power imbalance between the female and the male and endorsed negative gender stereotyping by portraying the woman in a demeaning sexualised state of undress on a bed while the man appeared standing up in a suit. The Panel considered the company’s submission but concluded that the explanation was not sufficient to justify the use of product name, imagery and language used on the product. The Panel considered that the gratuitous, sexualised image of the woman was objectifying and demeaning to women and caused serious offence based on gender and sex.  The Panel therefore concluded that the packaging was in breach of rule 3.3.

Action by Company:

Product is no longer being produced