Producer:

Zymurgorium

Complaint:

“This drink looks as if it’s aimed at children. It should not be sold in such packaging or with the pearlised effect of the product. Very concerning. I actually thought it was little girls bubble bath”.

Complainant:

Portman Group acting in lieu of a referral from the Advertising Standards Authority

Decision:

Under Code paragraph 3.2(h)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s (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 began by explaining that Zymurgorium as a brand, was well-known for its inventive drink flavours. The company stated that its creative experimentation with different flavour combinations was something its customer base expected from its product range.

The company explained that its packaging was equally as important to the brand as its inventive flavours. The company stated that each bottle of gin in its range was presented in a sophisticated glass bottle containing layered hexagons and a handcrafted dipped wax seal. The company explained that the artwork for each bottle was developed with professional artwork designers to create the look and feel of a sophisticated and intricate premium product.

The company stated that the Realm of the Unicorn product told the story of myth and legend, as the unicorn was an animal that resembled purity and honour and had featured on noble families’ emblems for centuries. The company explained that unicorns had featured in literature for thousands of years and had broad appeal amongst all age groups given their symbolism. On this basis, the company stated that it did not believe that unicorns had a particular appeal to children. The company highlighted three previous cases considered by the Panel regarding Firebox’s Unicorn Tears products which it ruled on in 2019 and noted that the Panel acknowledged that unicorn imagery ‘could hold a broad appeal for all age groups, given their symbolism’.

The company then addressed the image of the unicorn that appeared on the front label of the product. The company stated that the image was highly sophisticated and used fine intricate lines to define the mane, nose, ears and eyes of the unicorn, which had the effect of creating depth and precision to the image. The company explained that the head and nose were shaded to create the look of a real-life unicorn, rather than a cartoon character, and that it was an image that one would expect to find within art or adult literature. The company stated that it was deliberately not a childish image. The company explained that professional illustrators and designers had developed the unicorn image and that the company had instructed them not to create it as childlike or cartoonish.

The company shared an image of two unicorns with a rainbow positioned between them and stated that, at the time of development, a wholesaler had been aware of its plans and provided them with the image to base a design of the label on. The co-founders of the company disapproved of the image as it had a cartoon and childlike design and were aware that it was the type of image that the Portman Group would likely rule against. The company therefore rejected the design concept as it did not want to risk its integrity and reputation.

The company then provided examples of unicorn artwork on adult products and also provided examples of unicorn artwork that were typically found on children’s products to demonstrate the difference in artwork. The company shared images of the front cover of four books and one painting that featured unicorns found on products aimed at adults. These books were The Unicorn Anthology by Peter S. Beagle; Demons and Unicorns by Maggie Evans; Journey of the Two Unicorns by Lucy Linn Fells; and a unicorn colouring book for adults. The painting was unnamed but created by Lisa Whitehouse.

The company then provided images of the front cover of five books that featured unicorns that were aimed at children. These books were Little Miss Stubborn and the Unicorn by Roger Hargreaves; a journal aimed at 5 year olds that stated on the cover “I am 5 & Magical!”; Thelma the Unicorn by Aaron Blabey; A Unicorn Named Sparkle by Amy Young; and My Magical Unicorn by Campbell Books. The company also submitted three images of bath products that were aimed at children and featured unicorns on the label. These products were Carex Unicorn Magic Shower and Bath Gel; Unicorn Bubble Bath by Southern Sass; and Luksja Magic Unicorn Bath Foam.

The company explained that the colour of the images used in the products for children were bright, bold and contrasting whereas the colours in the products for adults were demure and complexly shaded and blended. The company pointed out that the packaging of the Realm of the Unicorn product was not bright, loud, artificial or contrasting.

The company highlighted two previous cases heard by the Panel; Gamma Ray (2015) and Captain Morgan (2016). The company noted that in the Gamma Ray case, the Panel had sought expert opinion on colour-based appeal to under-18s and that bolder colours with greater contrast tended to gain the attention of children. The Panel had concluded in that case that the contrast between the colours was not strong and did not have particular appeal to under-18s. The company also noted that the Panel had applied the same reasoning in the Captain Morgan case and did not uphold the complaint based on the colour of the label. The company then compared the Realm of the Unicorn product with these two previous cases and suggested that the colours used on its label were not luminescent, bright or contrasting and that compared to the Gamma Ray and Captain Morgan cases, the colours were less bright and contrasting and therefore did not have particular appeal to under-18s.

The company then addressed the text used on the Realm of the Unicorn. The company pointed out that there was a lot of text to read at the top of the label and on the two sides next to the unicorn which it said under-18s would not be typically drawn to, as this demographic preferred products that conveyed messages in a smaller number of words. The company explained that the font used was a Saxon derivative of roman typeface and that it contained roman numerals which would not have particular appeal to under-18s. The company also noted that the label did not use a single type of font and so the eye would not be drawn to any one part of the text, and therefore would be unlikely to have a particular appeal to under-18s.

The company explained that the bee image was the Zymurgorium brand logo. The company stated that bees appealed to all age groups due to their multi-functional abilities and were arguably more popular amongst adults due to the benefits they presented to the environment and to general well-being. The company explained that as a Manchester based business, the worker bee was chosen as one of the best-known symbols of Manchester and has been the emblem for the city for over 150 years denoting a Mancunians’ hard work ethic and the city being a hive of activity. The company stated that the image used intricate lines which gave the bee a life-like, rather than cartoon effect. The company highlighted the Panel’s previous decision against Zymurgorium’s Rhubarb and Cranberry Gin Liqueur which also considered the use of the bee image but did not find the product in breach of the Code.

The company then focused on the complainant’s assertion that the product had a ‘pearlised effect’. The company explained that the product contained Candurin which gave it a shimmer effect but noted that it would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously. The company highlighted the Flamingo Tears Gin and Pixie Tears Gin Panel decisions which featured products that both contained the same ingredient and resulted in the same shimmer effect as Realm of the Unicorn. The company also highlighted that the Flamingo label referenced ‘magic’ in the context of making the product shimmer. In those cases, neither complaint was upheld under rule 3.2(h).

In response to the complainant’s point about mistaking the product for child’s bubble bath, the company stated that the product would only be found in the spirits aisle of shops and that the RRP of the product was £14.99, in comparison to child’s bubble bath that had an average price of £1 to £3.50. The company said that it believed that this point raised by the complainant indicated that it was a malicious complaint designed to cause the company harm, rather than it being a legitimate complaint from a member of the public. The company noted that in the letter the Portman Group sent to the company regarding the complaint, the product was referred to as a ‘gin-based liqueur.’ The company asserted that the product had not displayed ‘gin-based liqueur’ on the label since 2019 and had since been labelled as ‘Premium Gin Liqueur.’ The company believed that the complainant was likely a competitor and asked the Panel to take this into strong consideration.

The company also stated that the product was clearly identifiable as an alcoholic product and so would not be confused with child’s bubble bath.

In regard to the product communicating its alcoholic nature with absolute clarity, the company pointed out that both products – whether the older version the complainant had complained about, or the up-to-date version – stated the alcoholic nature with the descriptors ‘gin-based liqueur’ and ‘premium gin liqueur’ and that this was in black capitalised font on the front of the label. The company stated that the alcoholic strength by volume (ABV) of 20% was in bold, black, capitalised text and was in a hexagon shape in order to stand out from the rest of the label. The company also highlighted that the side of the label contained relevant regulatory information including the UK pregnancy warning, a reference to alcohol units and a link to the Drinkaware website. Lastly, the company mentioned that the shape of the bottle was that of traditional spirit bottles and the top contained an anti-tamper seal which contributed to the product’s positive alcohol cues. The company therefore believed that the product clearly communicated the alcohol nature of the drink and would not be mistaken for a product that was suitable for under-18s.

The company then referenced a number of previous cases considered by the Panel under rule 3.2(h) of the Code and highlighted how these cases were similar to the Realm of the Unicorn product.

The first ruling the company referenced was Thrillseeker which was considered by the Panel in 2019. The company highlighted that the Panel ruled that the images on Thrillseeker were adult in nature due to the graphic novel style of the design and that the spacemen illustrations could be seen to have appeal to both adults and children but that it would be unlikely to have particular appeal to under-18s.

The second ruling the company highlighted was Pixie Tears which was also considered by the Panel in 2019. The company stated that in the Pixie Tears case the Panel ruled that the art-deco line drawing of the pixie was unlikely to have particular appeal to under-18s, but that fairy-tale characters could hold potential appeal depending on the imagery used. In that case, whilst the Panel had considered that the use of the pixie was close to the line in terms of acceptability, as it was not drawn in a cartoon-style, it was not considered to have appeal to young children. The company stated that the image of the fairy was created using thick, bold lines which were more simplistic and cartoonish than any of the images used on the Realm of the Unicorn.

The third ruling the company referenced was the Zymurgorium Forced Darkeside Gin case which looked at, in part, whether it breached rule 3.2(h), but the Panel did not uphold. The company noted that the Panel had found that the label in that case was not overly childish in its design. The company believed that that product was more exciting and eventful in its artwork than the Realm of the Unicorn and that it could not be said to have more appeal to under-18s than the Forced Darkeside Gin.

The fourth ruling the company highlighted was the Flamingo Tears case, where the Panel had ruled that whilst flamingos might have some appeal to a teenage market, it was not predominantly so and would appeal to an adult demographic as well. The company also argued that the Panel had found that the illustrations of the flamingos in that case were mature and stylised and that the font was staid. With regard to the shimmering effect of the liquid, the Panel considered that the overall design of the product was unlikely to have appeal to under-18s. The company stated that the flamingo and flower illustrations on Flamingo Tears were more cartoonish and likely to appeal to under-18s than the imagery on the Realm of the Unicorn. The company also highlighted that the bottle for Flamingo Tears was not the shape of a traditional spirit bottle and looked much more like a nail polish bottle. The company also believed that the bubbled, spaced out text on Flamingo Tears would be more appealing to youth culture than any of the fonts found on the Realm of the Unicorn.

The fifth ruling the company highlighted was the Fynoderee Manx Bumbee Vodka case which was not upheld on all points, including in regard to rule 3.2(h). In that case the Panel had found that whilst the design was whimsical, it was mature in design and the illustrations were adult in style. The company argued that the imagery on that product was very similar to the Realm of the Unicorn as both had complex and detailed artwork. The company believed that the images of the flowers and honeycomb were created using fine lines and complex blending of colours which created a similar level of depth and sophistication of the images used on the Realm of the Unicorn. However, the company stated that in comparison to Fynoderee Manx Bumbee Vodka, the Realm of the Unicorn did not use bright or contrasting colours, which would likely have appeal to under-18s.

The sixth ruling the company referenced was the Captain Morgan product range, which was not upheld in any aspects of the complaint, including rule 3.2(h). The company noted that the Panel had ruled that the image of the pirate was not a cartoon or cartoon-like and more closely resembled a piece of art or oil painting. The Panel also considered that the colours used were of a mature, shaded hue and that the image lacked luminescence or the bright colours that might be appealing to a younger audience. The company submitted that the colours of the pirate were more bright, bold and contrasting than the carefully blended slight colours used to create the unicorn. The company also believed that the pirate was more cartoonish in style compared to the unicorn which was more lifelike and therefore would not have more appeal to under-18s than the Captain Morgan product range.

The seventh ruling the company highlighted was the Gamma Ray case, which was not upheld in all aspects of the complaint, including in regard to rule 3.2(h). The company highlighted that the Panel had sought expert opinion on how colours could appeal to under-18s. The expert advice had stated that when creating visuals that appeal to children, the importance was on the level of luminance and contrast between the colours, rather than just bright colours. The expert opinion stated that bolder colours with greater contrast had more appeal to children. With regard to the decision made by the Panel, the company concluded that the contrast between the colours was not strong and on the basis of the colour of the packaging alone, would not have particular appeal to under-18s. The company argued that based on the Gamma Ray ruling, the same conclusions should also be drawn as Gamma Ray used the three bold colours of blue, red and yellow whereas the Realm of the Unicorn used a subtle blend of mainly greys and silvers.

The company also mentioned that in the Gamma Ray case, the Panel considered that whilst there was a risk of inadvertent appeal to teenagers aged 16 to 17 who might want to emulate adult behaviour, the images in question were of an adult nature. The company believed that the fine, lifelike drawing of the unicorn was more mature than Gamma Ray which featured a skeleton in a spacesuit wearing underpants, holding a gamma ray laser gun. The company stated that the Realm of the Unicorn would not have more appeal to under-18s than Gamma Ray.

The eighth ruling the company highlighted was the Lazy Sod case considered by the Panel in 2014 and was not upheld in all aspects of the complaint, including in respect to rule 3.2(h). The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular amongst a wide range of ages, it was particularly popular with children and teenagers and noted that the image of the monkey was a cartoon-style. However, the Panel had concluded that the product did not have particular appeal to under-18s. The company argued that the Realm of the Unicorn was not humourous and that it was unlikely that the image of the unicorn or the bee would have more appeal to under-18s than an image of a cartoon monkey wearing sunglasses, sipping a drink under an umbrella.

The ninth ruling the company highlighted was Grumpy Git that was also considered by the Panel in 2014 but was not upheld, including in regard to rule 3.2(h.) The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular among a wide range of ages, it was particularly popular with children and teenagers and recognised the cartoon-style of the image of the old man. However, the Panel had concluded that it did not have particular appeal to under-18s. The company argued that the imagery and font of Grumpy Git was more likely to have appeal to under-18s than the imagery or font on the Realm of the Unicorn. The company also suggested that the Realm of the Unicorn was mature in its appearance and feel, in comparison to Grumpy Git where the text and cartoon of the old man were funny and the colours were bold and artificial.

The tenth ruling the company submitted was the Unicorn Tears Raspberry Gin Liqueur and the Unicorn Tears Gin Liqueur which were both found by the Panel to breach rule 3.2(h) of the Code. In those cases, the Panel acknowledged that the unicorn imagery could hold broad appeal to all age groups. The Panel also found in those cases that the illustrations of the unicorns had the appearance of a child’s drawing and would not be out of place as a logo on a child’s product. The Panel noted that the thick, uneven typeface further compounded the childlike presentation of the products. The Panel also compared the illustration and typeface in the context of the previous expert opinion that it had received in the Gamma Ray case which stated that bold black lines were a marketing tool used to appeal to children. In contrast, the company argued that the Realm of the Unicorn did not use thick black lines or typeface in its imagery or font. The company also stated that the unicorn did not look like it had been drawn by a child, and that it was obvious it had been created carefully by a professional designer.

The Panel’s assessment:

The Panel discussed whether the product should be considered under any Code rule other than 3.2(h) as raised by the complainant. The Panel agreed that this was not required.

The Panel carefully considered the producer’s response. The Panel noted that the company had provided an extensive and detailed written submission and commended the producer for its response to the complaint. The Panel discussed the producer’s assertion that the complainant was likely to be a competitor as the complaint referred to the term ‘gin-based liqueur’ which had not been used since 2019 as the product was currently labelled as a ‘premium gin liqueur’. The Panel noted that the producer’s website listed the product as a ‘gin-based liqueur’ and that the product imagery on the website also displayed this descriptor which may have caused confusion.

The Panel discussed whether the product packaging had a particular appeal to under-18s and considered the individual design elements of the packaging as well as the overall impression conveyed.  The Panel considered the presentation of the unicorn artwork on the front label of the product and noted that the illustration was a sophisticated fine line drawing, with a muted pastel colour palette and did not employ the use of bold thick lines alongside bright and contrasting colours which the Panel had previously considered in past cases referenced by the producer in its written submission.  The Panel reiterated the point that unicorns could hold a broad appeal for all age groups, given their symbolism and that compliance would be determined by the presentation of the unicorn and overall impression conveyed by the product.  The Panel agreed that in this instance the sophisticated fine line drawing of the unicorn did not have a particular appeal to under-18s.

The Panel noted that the product incorporated a large amount of descriptive text in mature font on each side of the label which detailed the producer’s values and desire to bring sophistication and honour to ‘the purest mythological creature’ and a depiction that was ‘very different to the modern image’.  Alongside these elements, the Panel noted that the label also incorporated the company’s brand logo of a bee which it had previously considered as part of the Forced Darkeside Gin case and noted that its presentation in this context was not cartoon-like and was well-known as the emblem for Manchester where the producer was based.

The Panel discussed the overall impression conveyed by the product and noted the complainant’s concern that the product looked akin to bubble bath.  The Panel considered the traditional shape of the bottle and the numerous positive alcohol cues on the product which included the word ‘gin’, the product’s alcoholic strength by volume and a UK pregnancy warning which clearly communicated the alcoholic nature of the product with absolute clarity.  The Panel discussed further design features that included a silver wax seal on the top of the bottle which supported the producer’s assertion that the product was a luxury premium brand not aimed at children.  The Panel noted that the product contained candurin to give the product a shimmer effect and discussed the producer’s response which stated that the product would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously.  Upon closer inspection, the Panel considered that the product still had a shimmer effect when slightly turn by hand.  However, the Panel considered that the combination of the pale pink liquid colour and shimmer effect did not have a particular appeal to under- 18s

Overall, the Panel considered that the sophisticated unicorn artwork, muted colour palette and shimmer effect of the liquid were unlikely to have a particular appeal to under-18s when considered as individual elements or when taken in combination and accordingly did not uphold the complaint under Code rule 3.2(h).

Action by Company:

None required.

Producer:

Zymurgorium

Complaint:

“This drink looks as if it’s aimed at children. It should not be sold in such packaging or with the pearlised effect of the product. Very concerning. I actually thought it was little girls bubble bath”.

Complainant:

Portman Group acting in lieu of a referral from the Advertising Standards Authority

Decision:

Under Code paragraph 3.2(h)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s (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 began by explaining that Zymurgorium as a brand, was well-known for its inventive drink flavours. The company stated that its creative experimentation with different flavour combinations was something its customer base expected from its product range.

The company explained that its packaging was equally as important to the brand as its inventive flavours. The company stated that each bottle of gin in its range was presented in a sophisticated glass bottle containing layered hexagons and a handcrafted dipped wax seal. The company explained that the artwork for each bottle was developed with professional artwork designers to create the look and feel of a sophisticated and intricate premium product.

The company stated that the Flagingo product was based on 1970s and 1980s rock and roll, and that an older generation of adults would identify it with similar album covers from the time.

The company highlighted the Flamingo Tears Pink Grapefruit Gin case that the Panel had ruled on in 2019. The Panel ruled that flamingos had broad appeal to a wide range of age groups and that they did not have particular appeal to under-18s. The company addressed the illustrations on Flagingo and stated that whilst the flamingos were drawn using a stylised black illustration, they were not overly cartoon like in their design. The company also highlighted that the label contained other flamingos and music equipment which meant that the image did not have a single focal point.

The company stated that the imagery of the label would appeal to an older generation of rock and roll fans and to those who were familiar with acts such as AC/DC, Pink Floyd, David Bowie, Metallica, Def Leppard and Guns N’ Roses.

The company then addressed the text used on the label and highlighted that the word ‘flamingo’ was changed to ‘FlaGINgo’ to reflect that the product was a gin and was presented in a larger and different colour font to stand out. The company pointed out that there was a lot of text to read at the top of the label and on the two sides next to the flamingos which it said under-18s would not be typically drawn to, as this demographic preferred products that conveyed messages in a smaller number of words. The company explained that the font used was a Saxon derivative of roman typeface and that it contained roman numerals which would not have particular appeal to under-18s. The company also noted that the label did not use a single type of font and so the eye would not be drawn to any one part of the text, and therefore would be unlikely to have a particular appeal to under-18s.

The company explained that the bee image was the Zymurgorium brand logo. The company stated that bees appealed to all age groups due to their multi-functional abilities and were arguably more popular amongst adults due to the benefits they presented to the environment and to general well-being. The company explained that as a Manchester based business, the worker bee was chosen as one of the best-known symbols of Manchester and has been the emblem for the city for over 150 years denoting a Mancunians’ hard work ethic and the city being a hive of activity. The company stated that the image used intricate lines which gave the bee a life-like, rather than cartoon effect. The company highlighted the Panel’s previous decision against Zymurgorium’s Rhubarb and Cranberry Gin Liqueur which also considered the use of the bee image but did not find the product in breach of the Code.

The company then focused on the complainant’s assertion that the product had a ‘pearlised effect’. The company explained that the product contained Candurin which gave it a shimmer effect but noted that it would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously. The company highlighted the Flamingo Tears Gin and Pixie Tears Gin Panel decisions which featured products that both contained the same ingredient and resulted in the same shimmer effect as Flagingo. In those cases, neither complaint was upheld under rule 3.2(h).

In response to the complainant’s point about mistaking the product for child’s bubble bath, the company stated that the product would only be found in the spirits aisle of shops and that the RRP of the product was £14.99, in comparison to child’s bubble bath that had an average price of £1 to £3.50. The company also stated that the product was clearly identifiable as an alcoholic product and so would not be confused with child’s bubble bath.

In regard to the product communicating its alcoholic nature with absolute clarity, the company pointed out that the front label stated the alcoholic nature with the descriptor ‘gin based liqueur’ and that this was in black capitalised font. The company stated that the alcoholic strength by volume (ABV) of 20% was in bold, black, capitalised text and was in a hexagon shape in order to stand out from the rest of the label. The company also highlighted that the side of the label contained relevant regulatory information including the UK pregnancy warning, a reference to alcohol units and a link to the Drinkaware website. Lastly, the company mentioned that the shape of the bottle was that of traditional spirit bottles and the top contained an anti-tamper seal which contributed to the product’s positive alcohol cues. The company therefore believed that the product clearly communicated the alcohol nature of the drink and would not be mistaken for a product that was suitable for under-18s and that the wax seal at the top of the bottle would denote the quality and sophistication of an adult product.

The company then referenced a number of previous cases considered by the Panel under rule 3.2(h) of the Code and highlighted how these cases were similar to Flagingo.

The first ruling the company referenced was Thrillseeker which was considered by the Panel in 2019. The company highlighted that the Panel ruled that the images on Thrillseeker were adult in nature due to the graphic novel style of the design and that the spacemen illustrations could be seen to have appeal to both adults and children but that it would be unlikely to have particular appeal to under-18s. The company did not believe that Flagingo would have more appeal than Thrillseeker and that for the reasons set out above, it would have more appeal to an older generation of adults.

The second ruling the company highlighted was Pixie Tears which was also considered by the Panel in 2019. The company stated that in the Pixie Tears case the Panel ruled that the art-deco line drawing of the pixie was unlikely to have particular appeal to under-18s, but that fairy-tale characters could hold potential appeal depending on the imagery used. In that case, whilst the Panel had considered the use of the pixie was close to the line in terms of acceptability, as it was not drawn in a cartoon-style, it was not considered to have appeal to young children. The company stated that the image of the fairy was created using thick, bold lines which were more simplistic and cartoonish than any of the images used on Flagingo.

The third ruling the company referenced was the Zymurgorium Forced Darkeside Gin case which looked at, in part, whether it breached rule 3.2(h), but the Panel did not uphold. The company stated that Flagingo would not have more appeal to under-18s than the Forced Darkeside Gin which it believed had more exciting artwork. The company highlighted that in that case, the Panel had considered that Star Wars and similar sci-fi genre fans varied in age and did not therefore have particular appeal to under-18s. The company explained that in the Flagingo case, rock and roll fans would also be varied in age, but as previously stated, the product would have more appeal to an older generation of adults.

The fourth ruling the company highlighted was the Flamingo Tears Gin case, where the Panel had ruled that whilst flamingos might have some appeal to a teenage market, it was not predominantly so and that their appeal was broader and would appeal to an adult demographic as well. The company also argued that the Panel had found that the illustration of the flamingos in that case was mature and stylised and that the font was staid. With regard to the shimmering effect of the liquid, the Panel considered that the overall design of the product was unlikely to have appeal to under-18s. The company stated that the flamingo and flower illustrations on the Flamingo Tears product were more cartoonish and likely to appeal to under-18s than the imagery on Flagingo. The company also highlighted that the bottle for Flamingo Tears was not the shape of a traditional spirit bottle and looked much more like a nail polish bottle. The company also believed that the bubbled, spaced out text on Flamingo Tears would be more appealing to youth culture than any of the fonts found on Flagingo.

The fifth ruling the company highlighted was the Fynoderee Manx Bumbee Vodka which was not upheld on all points, including in regard to rule 3.2(h). In that case the Panel had found that whilst the design was whimsical, it was mature in design and the illustrations were adult in style. The company argued that Flagingo was similarly mature in its design. However, the company believed that the alcoholic strength by volume of the product stood out more on Flagingo, in comparison to Fynoderee Manx Bumbee Vodka as it appeared in the honeycomb and therefore blended into the background.

The sixth ruling the company highlighted was the Gamma Ray case, which was not upheld in all aspects of the complaint, including in regard to rule 3.2(h). The company highlighted that the Panel sought expert opinion on how colours could appeal to under-18s. The expert advice had stated that when creating visuals that appeal to children, the importance was on the level of luminance and contrast between the colours, rather than just bright colours. The expert opinion stated that bolder colours with greater contrast had more appeal to children. With regard to the decision made by the Panel, the company concluded that the contrast between the colours was not strong and on the basis of the colour of the packaging alone, would not have particular appeal to under-18s. The company argued that based on the Gamma Ray ruling, the same conclusions should also be drawn as Gamma Ray used the three bold colours of blue, red and yellow, whereas Flagingo used various blends of blue and pink.

The company also highlighted that in the Gamma Ray case, the Panel considered that whilst there was a risk of inadvertent appeal to teenagers aged 16 to 17 who might want to emulate adult behaviour, the images in question were of an adult nature. The company believed that the illustrations of the flamingos in a 1970s and 1980s rock and roll theme was less likely to have appeal to under-18s in comparison to an image of a skeleton in a spacesuit wearing underpants and holding a laser gun. The company stated that Flagingo would not have more appeal to under-18s than Gamma Ray.

The seventh ruling the company highlighted was the Lazy Sod case considered by the Panel in 2014 and was not upheld in all aspects of the complaint, including in respect to rule 3.2(h). The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular amongst a wide range of ages, it was particularly popular with children and teenagers and noted that the image of the monkey was a cartoon-style. However, the Panel had concluded that the product did not have particular appeal to under-18s. The company argued that Flagingo was not humourous and that the image of the flamingos and bee was more sophisticated than the cartoon monkey.

The eighth ruling the company highlighted was Grumpy Git that was also considered by the Panel in 2014 but was not upheld, including in regard to rule 3.2(h.) The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular among a wide range of ages, it was particularly popular with children and teenagers and recognised the cartoon-style of the image of the old man. However, the Panel had concluded that it did not have appeal to under-18s. The company argued that the imagery and font of Grumpy Git was more likely to have appeal to under-18s than the imagery or font used on Flagingo. The company also suggested that Flagingo was mature in its appearance and feel, in comparison to Grumpy Git where the text and cartoon of the old man were funny and the colours were bold and artificial.

The ninth case the company submitted was the Unicorn Tears Raspberry Gin Liqueur and the Unicorn Tears Gin Liqueur which were both found by the Panel to breach rule 3.2(h) of the Code. In those cases, the Panel acknowledged that the unicorn imagery could hold broad appeal to all age groups. The Panel also found in those cases that the illustrations of the unicorns had the appearance of a child’s drawing and would not be out of place as a logo on a child’s product. The Panel noted that the thick, uneven typeface further compounded the childlike presentation of the products. The Panel also compared the illustration and typeface in the context of the previous expert opinion that it had received in the Gamma Ray case which stated that bold black lines were a marketing tool used to appeal to children. In contrast, the company argued that Flagingo did not use thick black lines or typeface in its imagery or font and that a high level of skill and design had gone into the creation of this product which distinguished it from both Unicorn Tears products. Lastly, the company argued that the Unicorn Tears bottles resembled a nail polish bottle and was not in the traditional spirit bottle shape that Flagingo was in.

In conclusion, the company stated that whether looking at individual features of Flagingo, or as a whole, it would not, either directly or indirectly have a particular appeal to under-18s.

The Panel’s assessment:

The Panel discussed whether the product should be considered under any Code rule other than 3.2(h) as raised by the complainant. The Panel agreed that this was not required.

The Panel carefully considered the producer’s response. The Panel noted that the company had provided an extensive and detailed written submission and commended the producer for its response to the complaint.

The Panel discussed whether the product packaging had a particular appeal to under-18s and considered the individual design elements of the packaging as well as the overall impression conveyed.  The Panel considered the presentation of the flamingos on the front label and acknowledged that whilst the birds were anthropomorphised, they were stylised in a 70s and 80s rock style, akin to AC/DC. The Panel also noted that the flamingos were not drawn with thick bold lines but were instead depicted in a fantastical graphic novel style. The Panel reiterated its point that flamingos could hold a broad appeal for all age groups and did not have a particular appeal to under-18s in and of themselves.  In addition to this, the Panel considered that the stylised flamingos playing rock and roll music were more likely to have appeal to an older generation of adults as opposed to particularly appealing to those under-18.

The Panel noted that the product incorporated a large amount of descriptive text in mature font on each side of the label which detailed the producer’s values and the tasting notes of the product which linked to the musical artwork theme.  Alongside these elements, the Panel noted that the label also incorporated the company’s brand logo of a bee which it had previously considered as part of the Forced Darkeside Gin case and noted that its presentation in this context was not cartoon-like and was well-known as the emblem for Manchester where the producer was based.

The Panel discussed the overall impression conveyed by the product and noted the complainant’s concern that the product looked akin to bubble bath.  The Panel considered the traditional shape of the bottle and the numerous positive alcohol cues on the product which included the word ‘gin’, the product’s alcoholic strength by volume and a UK pregnancy warning which clearly communicated the alcoholic nature of the product with absolute clarity.  The Panel discussed further design features that included a pink wax seal on the top of the bottle which supported the producer’s assertion that the product was a luxury premium brand not aimed at children.  The Panel noted that the product contained candurin to give the product a shimmer effect and discussed the producer’s response which stated that the product would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously.  Upon closer inspection, the Panel considered that the product still had a shimmer effect when slightly turn by hand.  However, the Panel considered that the combination of the dark purple liquid colour and shimmer effect did not have a particular appeal to under-18s.

Taking the above into account, the Panel considered that the adult style of the flamingo artwork, the 70s and 80s rock and roll music theme, dark purple liquid colour and shimmer effect of the liquid were unlikely to have a particular appeal to under-18s when considered as individual elements or when taken in combination and accordingly did not uphold the complaint under Code rule 3.2(h).

Action by Company:

None required.

Producer:

ZX Ventures Limited, an AB InBev Group Company

Complaint summary:

The brand name BABE, has broad appeal to anyone who uses that nickname for friends or intimates. I bought the product on this basis (to gift to my wife) but I can see that this may also appeal to under 18s in a similar way (for instance, a 17 year-old buying a small gift for a girlfriend).

Complainant:

Member of the public

Decision:

Under Code paragraph 3.2(h)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s (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 it understood the key issue that had been raised by a member of the public was about the name ‘BABE’ having potential appeal to both adults and those under-18 when used as a nickname for friends and intimates, rather than the name ‘BABE’ having a particular appeal to under-18s.

The company stated that it took its compliance under the Portman Group’s Code of Practice seriously and was committed to marketing its products in a socially responsible manner. The company explained that it declined to proceed with Informal Resolution because it did not believe that BABE had a particular appeal to under-18s, not because it did not want to cooperate with the Portman Group.

The company said that it carefully considered the Portman Group Codes of Practice, accompanying guidance documents and previous decisions made by the Independent Complaints Panel (Panel) when launching its products.

The company explained that since BABE was made available to purchase in the UK, both online on BABE’s website and in the off trade sales channel, this was the first complaint it had received since January 2020. The company maintained that BABE did not have a particular appeal to under-18s and demonstrated that its target consumer base was people above the age of 25 with the following points:

• The age demographic of those that purchased BABE in the off trade sales channel, in March 2021 showed that 97% of sales were made by adults aged 25 and above.  The demographic making up the majority of sales (57%) were those aged 35-54;
• 88% of users who followed BABE UK social media accounts were aged 21-34, with no followers under the age of 18; and
• The target audience of BABE’s marketing initiatives have been aimed at those between the ages of 26 and 35.

The company stated that these statistics reflected the fact that BABE did not have a particular appeal to under-18s and was aimed at a mature audience.

In addition to this, the company stated that it had reviewed previous decisions made by the Panel in relation to Code rule 3.2(h) and noted:

• When reviewing whether the name of a product had a particular appeal to under-18s, the Panel considered whether the name was inherently problematic and whether the combination of the name and the images on the label would have a particular appeal to children (Juicebox decision);
• Where the name was associated with children’s confectionery, the Panel concluded the packaging needed to work harder to avoid particular appeal to under-18s (Juicebox & Sweet Little Drinks decisions);
• The Panel assessed whether the colours used on packaging were muted and whether it included images or contrasting colours associated with products aimed at under-18s (Little Pomona Table Cider, American Dream and Buoyancy Aid decisions).

In light of these previous decisions, the company sought to establish that both the name and overall label was compliant with the Code.

The company stated that the name of the product was not inherently problematic. The company explained that the term ‘Babe’ had first been used around 1915 to mean an attractive young woman and had been used as a romantic phrase since 1911, according to the Etymology and Oxford Dictionaries. The company stated that the use of the term as an endearment nickname had been around for over 100 years and was used by friends and couples of all ages. The company explained that it was not a recent slang phrase or derived from youth culture, and therefore did not have a particular appeal to those under the age of 18. The company noted that this point was evidenced by the complainant who had purchased the product for their wife.

The company reiterated that the Panel’s decision on Juicebox demonstrated that a name, even when related to something associated with children, was not inherently problematic but rather would be assessed in the context of the combination of the name and imagery and the overall impression conveyed.

In the context of the product’s overall impression, the company then stated that the alcoholic nature of both products was communicated on the packaging with absolute clarity, and listed the following positive indicators:

• The alcoholic strength was presented on the front label directly under the name of the products;
• Both products included ‘Rosé’ or ‘White’ in bold capitalised font which were established and well-known types of wine;
• The back label of the products repeated the above as well as:

1. a capitalised bold font ‘WINE’ and a repetition of the product’s alcoholic strength;
2. a responsibility message directing the consumer to the Drinkaware website;
3. a UK pregnancy warning symbol;
4. an anti-drink driving symbol; and
5. a reference to the number of UK units in the can.

The company then addressed the overall design of the packaging and explained that the colour scheme of both products was limited to dark blue, light blue and opaque white. The company stated that the font used was a standard bold font with sharp edges and displayed in capitalised letters. The company stated that the labels did not include any images or drawings and was limited solely to text.  In addition to this, the labels did not contain pinks, bubble text, glitters or other bright colours which might cause the overall product to have a particular appeal to under-18s. The company concluded that the can had a matte design, was muted, clean and simple and therefore designed to appeal to BABE’s mature adult demographic.

The company explained that the text on the side of the cans was short text in a standard blue font, which included a cheeky message to consumers showing BABE’s appreciation of them and was intended to be taken as tongue-in-cheek. The text did not include any reference to youth culture that would particularly appeal to under-18s and was set in the text messaging tone of its target demographic of women between the ages of 26-35. The company referred to a previous Panel decision regarding Pink IPA, where the Panel stated that the accompanying copy was tongue-in-cheek and not meant to be taken literally.

The company stated that the products were sold in the alcoholic beverages section of in the off trade sales channel, which follows the ‘Think 25’ campaign. The company explained that the products could also be purchased by consumers online from its website, which was age gated at point of entry and at the transactional stage.

The company explained that accompanying marketing materials on its social media channels were also age gated and included information in the page biographies that the content was only for over-18s. The company stated that these measures demonstrated that under no circumstance was BABE marketed to those under the age of 18.

The company concluded that the name, labels and marketing of BABE was socially responsible and did not have a particular appeal to under-18s.

The Panel’s assessment

The Panel discussed whether the products should be considered under any Code rule other than 3.2(h) as raised by the complainant. The Panel agreed that this was not required.

The Panel first discussed the overall impression conveyed by the product packaging and noted that BABE White with Bubbles and BABE Rose with Bubbles were near identical apart from the shade of blue used for the text and different colour ‘BABE’ text on the back label at the bottom.  The Panel noted that both cans employed a limited colour palette which was muted, did not include any characters or cartoon-like illustrations, and that the font used for the name and additional text was sharp and stark as opposed to childlike.

The Panel discussed the positive alcoholic cues on the packaging such as the product’s alcoholic strength by volume (ABV), the descriptors ‘Rose with Bubbles’ and ‘White with Bubbles’ and considered that this was sufficient to communicate the drink’s alcoholic nature with absolute clarity and was therefore unlikely to cause consumer confusion as to the adult nature of the product.

The Panel considered the messaging which appeared on the back of the can and noted that this was unlikely to have a particular appeal to under-18s. The Panel discussed the phrase ‘You guys’ and noted that this was gender neutral and likely to have broad appeal with the targeted demographic of those aged over 25. The Panel also noted that the complainant confirmed this perception with the statement ‘the brand name BABE has broad appeal to anyone’.  The Panel considered the social media data that the company had provided and noted that the user age demographic suggested that the drinks resonated with those aged 25-35 years old. The Panel also considered the sales data provided by the producer and noted that the majority of purchasers were aged 25 and above.  However, the Panel reminded the producer that while this evidence was useful for the purpose of understanding purchasing patterns, it was ultimately illegal for anyone under-18 to purchase the product so this data would not necessarily reflect whether the product had a level of appeal to under-18s.

The Panel then discussed whether the name ‘BABE’ had a particular appeal to under-18s. The Panel noted that ‘babe’ was a generic term used in various parts of the UK by a wide range of age groups as a term of endearment and was not new or particularly youthful vernacular. The Panel determined that as this was the case, the name ‘BABE’ was unlikely to have a particular appeal to under-18s.

Finally, when considering the name in combination with the overall impression conveyed by the packaging, the Panel concluded that both product variants of ‘BABE’ were unlikely to have a particular appeal to under-18s. The Panel accordingly did not uphold the complaint.

Action by Company:

None required.

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: [another producer’s product – 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)

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 ‘Side Eyes Pale Ale’ in capital letters and that pale ale was an old and well-known term for a popular type of 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;
• The words ‘Pale Ale’, commonly known as a type of beer, appeared in capital letters on the top 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).

In response to the Panel’s provisional decision that the product breached Code rule 3.2(h), the company said it did not agree with the comparison to Minecraft.  The company said Minecraft was more reminiscent of, for example, some regular Lego characters and Lego Duplo which was popular with under-18s, whereas the illustrations on the Side Eyes can were more reminiscent of pop art.  The company also said that it was common to have more than one illustrated character in art or communication to adults and that this method was not specifically used for illustrations targeted at, or designed to appeal to, under-18s.  The company stated that multiple characters were common in illustrations geared towards adults including graphic novels, Japanese Anime and in pop art.  The company disagreed that the multiple characters on the can caused the illustrations to have a particular appeal to under-18s.

The company did not agree with the conclusion that a cumulative effect of the bold lines, bright contrast colours and presentation of multiple cartoonish characters meant that Side Eyes had a particular appeal to under-18s.  The company maintained its assessment that, taking into account the artistic illustrations, the factual-language and the neutral font, the Side Eyes can did not have a particular appeal to children.

The Panel’s assessment

Code rule 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 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 word ‘Ale’ on the back label in the same field of vision as the alcoholic strength by volume (ABV). The Panel also noted that ‘Pale Ale’ appeared in large bold font around the top of the can and that this was a common term used to refer to 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 rule 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 this was particularly cartoon-like and reminiscent of Minecraft which was popular with under-18s. The Panel noted that the artwork used bold lines with bright primary contrast colours that were likely to have a particular appeal to younger children. The Panel discussed the nature of the artwork at length and carefully considered the simplistic design of the characters on the can.  The Panel considered that, in this particular instance, the artwork appeared immature and the inclusion of more than one character contributed to the overall impression that the illustration was childish in its appearance.  The Panel discussed the company’s response to the provisional decision but noted that the company had not produced any new evidence to consider and therefore  maintained the view  that the cumulative effect of the bold lines, bright contrast colours and presentation of multiple cartoonish characters meant that the product had a particular appeal to under-18s.The Panel accordingly upheld the complaint under Code rule 3.2(h).

The Panel acknowledged that some producers sought to use bright contrast colours to stand out on shelf but urged producers to consider the inadvertent appeal this may create for young children.

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.

Action by Company:

Working with the Advisory Service.

Producer:

Incognito Group Limited

Complaint summary:

The name of the product FOK HING Gin is clearly intended to shock and be pronounced as an offensive term- marketing comments I’ve seen online include

Fokthehaters and those who don’t like the name name(sic) can FOK OFF

So despite claims this is a Hong Kong language term meaning good luck – it’s obvious the intention is to shock and offend those who find swearing undesirable and unacceptable.

Personally I wouldn’t want to see this product on family supermarket shelves or being promoted in an environment where children have access – such as most social media sites.

Complainant:

Member of the public who is a licensing officer

Decision:

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 began by explaining the history of the name of the product and stated that it was a gin brand owned and operated by a Hong Kong domiciled company. The company disagreed with the complainant’s interpretation of its name as a reference to offensive language and clarified that ‘Fok Hing Gin’ was an English romanisation of traditional Chinese, which meant ‘Fortune and Prosper’. The company stated that it paid homage to ‘Fuk Hing Lane’, a street located in Causeway Bay Hong Kong and explained that the name had been changed from ‘Fuk’ to ‘Fok’ to differentiate it from offensive language used in western culture.  The company stated that it was quite common to employ such techniques in Chinese culture and had chosen ‘Fok Hing’ to share wishes with its customers.  In addition to this, the company explained that ‘Fok Hing Gin’ was also an acronym of ‘Gin of HK’ in respect of its origin.

The company explained that after well-documented prejudice against those of Asian descent during the global pandemic it had sought to draw attention to the cultural diversity of the city which inspired the product.  The company acknowledged that while this could be prompted by humour and curiosity at the brand name, its intention was to promote awareness of its story and heritage in the markets in which it operated.

In response to the complainant’s claim that the product name was intended to shock, the company maintained that this was a personal and assumptive reaction to its brand. The company emphasised that while the western pronunciation of ‘Fok Hing’ may sound akin to profanity, it was not a solicitation to encourage the use or acceptability of offensive language. The company explained that when correctly pronounced ‘Fok Hing’ should sound as ‘Fuk Hing’ in Cantonese Jyutping.  Noting its previous points, the company explained that in other channels of marketing it promoted the need to take caution when verbalising the name ‘Fok Hing Gin’.

The company reiterated that the name meant fortune and prosperity and was designed to be enjoyed as part of a celebration amongst friends. The company stated that the name was not meant to cause serious offence and highlighted the fact that the product had over 100 five-star reviews.

The company provided a full copy of the online ad that the complainant referenced for context. The ad read ‘FOK THE HATERS. More than just a funny name, we actually taste FOK HING good. Don’t believe? Kiss our award’ and ’More than just a FOK HING name’. The company stated that the response to the ad had been positive and was compliant with relevant advertising regulations. The company acknowledged that while some aspects of its marketing used novelty and humour, this was part of its overarching approach to inspire consumers to learn more about the brand story and heritage.  The company also stated that it was not responsible for responses to its advertisements in the comments section of social media and that it did not monitor or govern how users may further play on the interpretation of the brand name.  The company stated that its approach had led to the brand being recognised as an iconic gin by several notable press and global news outlets such as South China Morning Post and Tatler.

Finally, the company addressed the complainant’s concern that children could view the name in family supermarkets or online. The company explained that it sold its brand direct to consumers and that it was strict in ensuring that the product was not visible to under-18s.  The company stated that its website operated with an age gate and its social media profile was inaccessible to those under the legal age of consumption dependent on the user’s country of origin.  The company explained that its courier partners abided by Challenge 25 which also prevented minors from accessing the product.

The company summarised that a personal interpretation of its brand name should not limit the representation and celebration that it aimed to promote.  The company stated that consumers should have free will to engage and purchase the brand based on individual assessment and interpretation of the name.

The company confirmed that it was willing to work with the Portman Group to deliver a brand that was compliant with the Code of Practice, whilst continuing to strive toward its ambition to bring fortune and prosperity.

In response to the Panel’s provisional decision, the company noted that the Panel had deemed the words ‘Fok Hing” to be profanity and of the same offensiveness as “fuck” as determined by Ofcom.  The company stated that it believed the Panel had taken an overly cautious position and that the phonetic expression of the phrase ‘Fok’ was more likely understood as the word ‘feck’ would be, which was defined as ‘medium strength’ language. The company reiterated the importance of the correct pronunciation of the word to avoid the misconception that a profane word was used. To emphasise this, the company stated that it would include the written phonetic pronunciation of “Fok Hing” on the UK version of the back label and would also include the Chinese term “福興” in Cantonese Jyutping (Chinese words expressed in romanised characters with numerals to indicate tonal inference).

The company stated it would redesign the back label of the product to include a graphic representation of ‘Fuk Hing Lane’ and would also include a descriptive narrative of the brand story to provide context for consumers regarding the name and heritage of the product.

The company then addressed the concern that its marketing activities on social media and its own website alluded to profanity. The company explained that it had employed a marketing agency for website copy development and campaign management that had used comedic effect, tongue in cheek humour and ‘banter’ to engage with British consumers as part of localisation efforts. The company maintained this had positively resonated with consumers but acknowledged that this method was not compliant with Portman Group guidelines.

The company explained that it had terminated its relationship with the marketing agency in question and had created new brand guidelines for future advertising materials. The company confirmed the line ‘any similarity is purely deliberate’ had been removed from its website to avoid any misunderstanding as to how the name should be accurately perceived.

The company noted the Panel’s concern that while some may find the branding humorous, ‘Fok Hing’ could cause offence particularly to older consumers. The company explained this observation was confirmed by its brand engagement metrics which revealed that the majority of its audience was between the age of 25-54. The company reiterated that that the brand had positive feedback through social media and numerous five-star reviews. The company stated that its audience segmentation and targeting was already aligned with a demographic that the Panel considered appropriate. The company acknowledged that the ‘Fok Hing Gin’ would not appeal to all consumers, however it considered its consumers were suitably informed to make sound judgments on their brand purchasing decisions.

In response to the concern that the product could be viewed by a wider audience at home; the company maintained that off-licences stores should have robust procedures in place to ensure that only over-18s were able to purchase the product. The company stated that it could not be held accountable for adults choosing to purchase and display the product in their own homes; and therefore, who may be exposed to it. The company stated this was outside of its control as a producer, and that the Panel had been unfair in its assessment on that point. The company stated that it supported Drinkaware and its campaign to further promote responsible drinking.

The company confirmed it would take the actions as outlined above over the next six months. The company advised as a courtesy to the Hong Kong people, culture and heritage, that it had provided the Hong Kong Trade & Development Council, an executive department of the Hong Kong Special Administrative Region Government, a dossier of the correspondence pertaining to the complaint.

The Panel’s assessment

The Panel discussed the company’s response to the complaint and noted that the name was taken from a popular road in Hong Kong ‘Fuk Hing Lane’, as well as being an anagram of ‘Gin of HK’. The Panel considered the company’s explanation that the name paid tribute to its brand heritage and culture. The Panel noted that the front of the packaging was minimal in design and aside from the name, that there were no other elements of the product that had the potential to cause serious or widespread offence. However, when reviewing the back label, the Panel noted that the brand story was unclear and made little reference to the street that was its namesake other than stating that the brand was inspired by the city of Hong Kong.

Noting this point, the Panel discussed how the name was likely to be understood by consumers.  The Panel considered the company’s response which provided the full copy of the online ad that the complainant had referenced.  The Panel discussed the ad and marketing copy that also appeared on the brand website which stated, ‘any similarity is purely deliberate’.  The Panel noted that in accompanying marketing the name was used as a deliberate play on words and in such a way that was clearly alluding to profanity. The Panel acknowledged that some consumers may find the name humorous or tongue in cheek. However, it was noted that the marketing was inconsistent with the company’s explanation that the name was not intended to be used as a play on words for swearing.  While the Panel noted that the company had taken steps to differentiate the name with foul language by naming the gin ‘Fok Hing’ it concluded that the phonetic pronunciation of ‘Fok Hing’ sounded like profanity and was being used as such in accompanying marketing which had the same potential to cause serious or widespread offence as the word ‘fuck’.

The Panel then sought to determine if the name, given its affinity to an expletive, could cause serious or widespread offence.  The Panel cited Ofcom’s research report entitled ‘Attitudes to potentially offensive language and gestures on TV and radio’ and noted that the word ‘fuck’ was listed in the category of strongest offensive language and seen by participants as ‘strong, aggressive and vulgar’[1].  The Panel also noted that older participants were more likely to consider the word as unacceptable.

The Panel discussed the company’s response and acknowledged that the drink was currently only available for purchase online directly to consumers. However, the Panel stated that all alcohol packaging sold in the off-trade had the capacity to be viewed by a wider audience at home.

The Panel recognised that the company had taken steps to mitigate the name being pronounced as an expletive and that it had strong links to the brand’s heritage and culture although this was not explained clearly on pack. However, when considering the strength of the profanity and the use of the name as a profanity in accompanying marketing materials, the Panel determined that the name caused serious and widespread offence.

The Panel discussed the company’s response to the provisional decision.  The Panel noted the company’s claim that it had acted beyond its remit. The Panel clarified that the name and packaging of a product was within its remit to consider, as defined by clause 1.3 of the Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks, and that its regulatory remit included the naming packaging and promotion of alcoholic drinks within the on and off-trade in the UK. The Panel sought to remind producers that it was important to be mindful that products sold in the off-trade had the capacity to reach a wider audience and could be viewed in a home environment.

The Panel discussed the company’s explanation that the word ‘Fok’ was likely to be understood as the word ‘feck’ would be, which was defined as ‘medium strength’ language by Ofcom. The Panel noted that the company had chosen to change ‘Fuk Hing’ to ‘Fok Hing’ rather than ‘Fek Hing’. Taking that into consideration, the Panel considered that the phonetics of the word were likely to be understood by consumers as ‘fuck’ and also noted that the marketing agency’s strategy of playing on ‘banter’ only reinforced the perception that it was intended in this manner.

The Panel welcomed the company’s commitment to amend its marketing in response to the provisional decision. However, the Panel explained that it was not for the Panel to approve changes made to packaging, but rather to assess the packaging and marketing subject to complaint. The Panel stated that it was the role of the Portman Group’s Advisory Service to provide confidential advice under the Codes of Practice and encouraged the company to engage with the service regarding its proposed changes.

In conclusion, the Panel noted that the strength of the profanity, in combination with the company’s accompanying marketing materials, where the name was used in such a way that was clearly alluding to profanity, meant that the packaging was likely to cause serious and widespread offence.  Accordingly, the Panel concluded that the packaging was in breach of Code rule 3.3.

Action by Company:

Working with the Advisory Service.

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.