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ProducerHeineken

Final Decision: 3 September 2020

Considered under the 6th Edition of the Code.

COMPLAINT SUMMARY:

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

COMPLAINANT:

Member of the public

DECISION:

Under Code paragraph 3.2(h):

3.2(h) A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s

NOT UPHELD

Under Code paragraph 3.3:

3.3     A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that the product has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour.

NOT UPHELD

The  company’s submission:

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

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

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

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

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

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

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

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

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

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

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

The Panel’s assessment

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

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

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

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

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

Action by Company:

None required

 

Producer: Hammerton Brewery in collaboration with Brew By Numbers

Final Decision: 16 July 2020

Considered under the 6th Edition of the Code.

Complaint summary:

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

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

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

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

Complainant:

Member of the public

Decision:

Under Code paragraph 3.1:

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

 NOT UPHELD

Under Code paragraph 3.2(b):

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

NOT UPHELD

Under Code paragraph 3.2(h):

3.2(h) A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s

NOT UPHELD

Under Code paragraph 3.2(j):

3.2(j)  A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that the product has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour.

NOT UPHELD

The company’s submission

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

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

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

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

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

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

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

“…importance on the levels of luminance and contrast between the colours. The panel concluded that the contrast between the colours were not strong and therefore on a basis of colour, the packaging would not have a particular appeal to under 18s.”

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

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

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

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

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

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

The Panel’s assessment

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

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

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

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

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

Action by Company:

None required

Product:                  Frosty Jack’s Cider

Producer:                Aston Manor

Final Decision: 16 July 2020

Considered under the 6th Edition of the Code.

Code Signatory:

Yes

Complainant:

Member of the public

Complaint summary:

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

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

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

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

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

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

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

Decision:

Under Code rule 3.1(f)

3.2(f)  A drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness

NOT UPHELD

Under Code rule 3.1(h)

3.2(h) A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s

NOT UPHELD

Under Code rule 3.1(j)

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

NOT UPHELD

The company’s submission

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

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

Context of the ‘white cider’ category/consumer

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

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

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

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

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

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

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

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

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

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

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

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

The Panel’s assessment

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

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

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

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

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

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

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

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

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

Action by company:

None required

 

 

Producer: Van Pur S.A.

Final Decision: 30 January 2020

Considered under the 6th Edition of the Code.

Complaint summary:

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

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


Complainant:

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

Decision:

Under Code paragraph 3.2(a)

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

UPHELD

Under Code paragraph 3.2 (f)

A drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness.

UPHELD

The company’s submission

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

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

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

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

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

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

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

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

The Panel’s assessment

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

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

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

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

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

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

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

Action by Company:

 

To find out more, read the press release here.

Company: Lost and Grounded Brewers Ltd
Breach: No
Final Decision: 14 November 2019

Considered under the 6th Edition of the Code.

Complaint summary

“I’d like to make a complaint about two beers by Lost and Grounded. I saw them in Waitrose yesterday (4th Sept) and felt that they were likely to be of strong appeal to children, breaching rule 3.2(h) of the Code.

They both feature anthropomorphic, slightly cartoony animals. The Running With Sceptres can features a parade of these animals very prominently, and the poses seem very much inspired by children’s book Where the Wild Things Are. The Keller Pils beer had fewer animals on it, but nevertheless for me the cutesy animal in a rowing boat made an instant association with children’s classic The Wind in the Willows.”.

Complainant

Member of the public

Decision

Under Code paragraph 3.2 (h)

A drink’s name, its packaging and any promotional material or activity should not have a particular appeal to under-18s

NOT UPHELD

The company’s submission

The company first addressed the claim that the products had strong appeal to children. The company stated they disagreed with the complaint; there were numerous factors which reduced the likelihood of children trying to purchase or being attracted to the products. The company said there were numerous examples of the industry using branding assets like theirs.

The company explained the background of the brewery; they took inspiration from the tradition of Belgian brewing, which they explained was a prominent part of Belgium’s history and folklore. The company pointed to illustrations used by other well-known brewers. The company stated they were a young company, three years old, with this branding developed over 6 months between 2015 and 2016). The company stated the branding was produced by an independent freelance illustrator taking inspiration from the company’s values. The company stated all were original works of art and the labels told personal stories or the company’s ethos, all with humble, kind and inclusive meanings behind them.

The company highlighted the product descriptions on their website:

‘Keller Pils: Sometimes the simple things in life are the best. We take Pilsner malt from Germany and combine with three traditional hop varieties – Magnum, Perle and Hallertauer Mittelfruh – to produce a clean, unfiltered, Hop Bitter Lager Beer. 4.8% ABV. 6.5 EBC. 34 IBU.

The company said they had never targeted children and only advertised in niche publications targeted at adult food and beverage customers. The company also said their products had predominately been sold in on-trade environments to licensed premises.

The company said they ran a socially responsible company and had been a Living Wage accredited business since their inception. The company highlighted local charities they had supported: Fare Share West, Caring in Bristol, Food Cycle and Breast Cancer UK. The company stated they have never received a complaint despite both products appearing on national TV and in national weekly publications. The company also highlighted that, despite +8,100 Instagram, 5,750 Twitter and 3,300 Facebook followers, they had never received a complaint.

The company stated only a minority of their volume had been sold in Waitrose (<10%) and was sold solely in the alcohol section. The company highlighted they had not sold products to other large multiple retailers. The company explained that the price of £2.50 (Keller Pils) and £2.60 (Running with Sceptres) were two of the most expensive lagers in Waitrose, and the premium price appealed to adults and not children.

The company stated that the drinks were sold in 440ml cans, differentiating them from sizes used by soft or energy drink companies. The company highlighted the beer terminology used to label the front and back including the phrase “Hop Bitter Lager Beer”. The company said the alcoholic content was clearly legible in large font on the label, and the name Lost and Grounded Brewers was on the side, indicating they were a beer company.

The company stated the labels featured artistic illustrations, not cartoons; they said cartoons were animated, with developed stories and typically designed for children, not a singular label or artwork. The company explained the branding was colourful yet adult, as they were extremely detailed, layered and nuanced. The company also explained the cans had matte finishes with considered tones to appeal to adult consumers, not bright colours and a glossy finish which might be more likely to attract children.

The company said illustrations and animals or other characters used for beer branding were not unique to Lost and Grounded Brewers. The company gave examples of other beer producers who used images of animals, unique characters or illustrations on their labels.

The company said they disagreed with the complaint and that their reasoning was based on the retail environment, packaging, label format and artwork. The company reiterated the use of illustrations or special characters was not unique to Lost and Grounded and was well established in beer branding across the industry.

The Panel’s assessment

The Panel acknowledged the producer’s view that the retail environment and price point would prevent children from buying Keller Pils, but considered that the Code meant drinks should not have particular appeal to under-18s regardless of the retail environment.  The Panel considered that the rule covered the impact of packaging on children who might encounter it in their homes, for example, and not merely the risk that a child might buy a product by mistake.

The Panel noted the packaging used muted colours and a matte finish which at first glance gave an adult feel to the product.  The Panel considered that the illustration had a storybook feel and that the image of a hippo in a rowing boat could be seen as reminiscent of children’s books.  The Panel considered, however, that the character in the rowing boat was relatively small within the overall image and it was not in any way prominent.  The Panel thought the overall impression was retro.  While it acknowledged that retro storybook imagery could appeal to today’s children, the Panel considered that, in this case, the label showed a stylised landscape in a graphic style, using muted colours and without any prominent elements that had particular appeal to under-18s.  Accordingly, it did not uphold the complaint under Code rule 3.2(h).

Action by Company

None required.

To find out more, read the press release here.

Company: Lost and Grounded Brewers Ltd
Breach: Yes
Final Decision: 30 January 2020

Considered under the 6th Edition of the Code.

Complaint summary

“I’d like to make a complaint about two beers by Lost and Grounded. I saw them in Waitrose yesterday (4th Sept) and felt that they were likely to be of strong appeal to children, breaching rule 3.2(h) of the Code.

They both feature anthropomorphic, slightly cartoony animals. The Running With Sceptres can features a parade of these animals very prominently, and the poses seem very much inspired by children’s book Where the Wild Things Are. The Keller Pils beer had fewer animals on it, but nevertheless for me the cutesy animal in a rowing boat made an instant association with children’s classic The Wind in the Willows.”.

Complainant

Member of the public

Decision

Under Code paragraph 3.2 (h):

A drink’s name, its packaging and any promotional material or activity should not have a particular appeal to under-18s

UPHELD

The company’s submission

The company first addressed the claim that the products had strong appeal to children. The company stated they disagreed with the complaint; there were numerous factors which reduced the likelihood of children trying to purchase or being attracted to the products. The company said there were numerous examples of the industry using branding assets like theirs.

The company explained the background of the brewery: they took inspiration from the tradition of Belgian brewing, which they explained was a prominent part of Belgium’s history and folklore. The company pointed to illustrations used by other well-known brewers. The company stated they were a young company, three years old, and had developed this branding over 6 months between 2015 and 2016. The company stated the branding was produced by an independent freelance illustrator taking inspiration from the company’s values. The company stated all were original works of art and the labels told personal stories or the company’s ethos, all with humble, kind and inclusive meanings behind them.

The company highlighted the product description on their website:

Running with Sceptres: ‘A sceptre is something normally reserved for the likes of royalty, but we all carry a sceptre – something that makes us special. For this India Pale Lager, we combine Pilsner, Vienna and Caramalts with a huge whack of hops to make what we call a Special Lager Beer. 5.2% ABV. 16 EBC. 38 IBU’

The company said they had never targeted children and only advertised in niche publications targeted at adult food and beverage customers. The company also said their products had predominately been sold in on-trade environments to licensed premises.

The company said they ran a socially responsible company and had been a Living Wage accredited business since their inception. The company highlighted local charities they had supported. The company stated they have never received a complaint despite both products appearing on national TV and in national weekly publications. The company also highlighted that, despite +8,100 Instagram, 5,750 Twitter and 3,300 Facebook followers, they had never received a complaint.

The company stated only a minority of their volume had been sold in Waitrose (<10%) and was sold solely in the alcohol section. The company highlighted they had not sold products to other large multiple retailers. The company explained that the price of £2.50 (Keller Pils) and £2.60 (Running with Sceptres) were two of the most expensive lagers in Waitrose, and the premium price appealed to adults and not children.

The company stated that the drinks were sold in 440ml cans, differentiating them from sizes used by soft or energy drink companies. The company highlighted the beer terminology used to label the front and back including the phrase “India Pale Lager”. The company said the alcoholic strength by volume was clearly legible in large font on the label, and the name Lost and Grounded Brewers was on the side, indicating they were a beer company.

The company stated the labels featured artistic illustrations, not cartoons; they said cartoons were animated, with developed stories and typically designed for children, not a singular label or artwork. The company explained the branding was colourful yet adult, as they were extremely detailed, layered and nuanced. The company also explained the cans had matte finishes with considered tones to appeal to adult consumers, not bright colours and a glossy finish which might be more likely to attract children.

The company said illustrations and animals or other characters used for beer branding were not unique to Lost and Grounded Brewers. The company gave examples of other beer producers who used images of animals, unique characters or illustrations on their labels.

The company said they disagreed with the complaint and that their reasoning was based on the retail environment, packaging, label format and artwork. The company reiterated the use of illustrations or special characters was not unique to Lost and Grounded and was well established in beer branding across the industry.

In response to the provisional decision that the product breached Code rule 3.2 (h), the company stated the product made up 10% of their sales. The company explained a negative decision would be financially disastrous, result in the loss of a major account, limit sales, write off branding assets and cause confusion. The company stated they were socially responsible and had shareholders with extensive experience in the brewing industry.

The company expressed disappointment to have been found in breach following a single complaint, and found it strange that a consumer would have such good knowledge of the Code. The company argued their product was nothing like RTDs or Alcopops from the 1990s which were arguably designed to attract teenagers. The company also stated there was parental responsibility and raised the example of brightly coloured chemical bottles.

The company denied the images were cartoony and said there was no connection to ‘Where the Wild Things Are’. The company stated children were attracted to bright, contrasting colours and bold shapes; they said ‘Running With Sceptres’ was extremely tonal in nature with fine outlines which appealed to adults. The company listed cartoon examples which were directed at children and noted all the animals were extremely humanised, with large, bright eyes and friendly smiles.

The company also listed drinks whose branding were designed to specifically appeal to children and noted they did not share the same characteristics. The company stated the animals on Running with Sceptres were not overly-enhanced to humanise them and were quite anatomically correct. The company disputed the complainants’ view that the animals were ‘friendly looking’, arguing that the animals were not facing forward and the ‘friendly’ was a very subjective statement. The company stated the consumer would have to rotate the can to see the whole image and so would view the ALC.%, product descriptor and see it was beer.

The company argued that there was a difference between anthropomorphism and personification.  They argued the sceptres in the illustration were a play on the name and not designed to make the animals look more human. The company concluded the product was not “cartoony” as a cartoon was a series of illustrations, not a single image.

The Panel ’s assessment

The Panel acknowledged the detailed response submitted by the company and thanked them for attending the meeting to give an oral presentation. The Panel noted that, after receiving the complaint, the producers had sought opinions on appeal to children.

The Panel noted the packaging used muted colours and a matte finish which at first glance gave the can a more adult character.  The Panel thought the overall impression was retro and, in its view, as previously expressed in other decisions, retro or nostalgic imagery because of its link to the childhoods of adult consumers had to work hard not to also appeal to today’s children.

The Panel considered that the illustrations of animals on this packaging were prominent and stood out on the muted can design.  They considered that the illustration was reminiscent of children’s books where animals often behaved with, and were illustrated as having, human characteristics: they noted the animals were depicted smiling, gripping the sceptres and the walking on their hind legs, which the Panel still considered to be anthropomorphic elements.  The Panel noted that muted storybook designs – such as ‘Peter Rabbit’ – still appealed to today’s children.

The Panel acknowledged the producer’s comments that stockists had not objected to the packaging and that the retail environment and price point would prevent children from buying Running with Sceptres.  The Panel considered, however, that the Code gave the primary responsibility for compliance to producers, not retailers, and that the rule covered the impact of packaging on children who might encounter it in their homes, for example, not merely the risk that a child might buy a product by mistake.

The Panel acknowledged that the producers had not deliberately tried to target children and that the muted colours and retro style of illustration were intended to appeal to adults. The Panel believed the particular appeal to children was inadvertent and recognised that the company strove to be socially responsible. The Panel emphasised that they did not object to the product’s name or the overall brand identity, but considered that the prominence and anthropomorphic character of the animals on this specific packaging created a particular appeal to children.

After considering the overall impression conveyed by the packaging, the Panel upheld the complaint under Code rule 3.2(h).

Action by Company

The company decided not to work with the Portman Group advisory service to amend their product in line with the Panel’s ruling. Therefore, the Retailer Alert Bulletin below was issued.

To find out more, read the press release here.

RAB – Running with Sceptres

Company: United Dutch Breweries
Breach: Yes
Final Decision: 30 January 2020

Considered under the 6th Edition of the Code.

Complaint summary

“The product puts undue emphasis on its alcoholic strength by including the word ‘extra’ next to strong. At ABV 8.5% the lager is much stronger than the average strength of similar beverages, but the way this is communicated goes beyond giving factual information.”

Complainant

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

Decision

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

UPHELD

3.2(f) A drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness

UPHELD

The company’s submission

The company expressed surprise that the complaint was under investigation, because the product had been considered under Code Rule 3.2(a) in 2016. The company said the Panel had previously concluded that “extra strong” was factual and quoted the Panel’s decision:

“The Panel went on to consider whether the product should be reviewed under any other aspect of the Code. The Panel raised concerns with regard to rule 3.2(a), that a product’s packaging should not in any direct or indirect way give the higher alcoholic strength undue emphasis. The Panel discussed the size and prominence of the ‘8.5’ (indicating the strength of the product) displayed on the front of the product alongside the words ‘imported’ and ‘extra strong’. The Panel said that the ‘8.5’ was larger and bolder than some of the other wording on the can and that it was quite prominent. However, the Panel agreed that, particularly taking into account the fact that the product comes in a number of different strengths, that it was useful for the consumer to know that the product was 8.5% ABV. The Panel also agreed that the words ‘imported’ and ‘extra strong’ were factual and not unduly emphasised when compared with other wording on the product. The Panel did not think that the product packaging placed undue emphasis on the alcoholic strength of the drink. Accordingly, the Panel did not uphold the product under Code paragraph 3.2(a).”

The company said the Code was exactly the same, the claim was the same, and the Panel had already given its opinion on the claim.

The company referred to the Panel’s decisions on Tennent’s Super Strong and SKOL Super Strong; they noted both those products mentioned ‘super’ in a very prominent way and were allowed by the Panel. The company argued that, according to the Cambridge Dictionary, ‘super’ meant “excellent”, which they said was a qualitative statement and therefore less factual. The company said that, according to the Cambridge Dictionary, ‘extra’ meant ‘added to what is normal’, which was a factual statement. The company also argued that ‘extra’ was not as prominent on the packaging as ‘super’ had been on those products.

The company argued that, given the Tennent’s Super Strong and SKOL Super Strong, the less prominent and more factual word ‘extra’ should be allowed. In response to the Panel’s provisional decision finding the product in breach of the Code, the company said the Panel had rejected the complainant’s original objection to the world ‘extra’ but had nonetheless upheld the complaint for a different reason. The company asked the Panel to reconsider their decision because it was not related to the basis of complaint.

The Panel’s assessment

The Panel noted that it had discussed this product in substantially similar packaging in 2016. The Panel was satisfied that it could consider the product again, because a new edition of the Code had come into force, accompanied by new guidance.

The Panel first considered whether the word “extra” gave undue emphasis to the higher alcoholic strength of the product. The Panel noted the phrase was in black text on a can that was predominantly black and considered that the phrase was unobtrusive within the overall design. They also noted that the Oranjeboom range included lagers of different strengths, including a lower strength product. The Panel considered that “extra strong” was an acceptable name to differentiate the product variant from others in the range and considered that, within the overall design, the phrase was not given undue emphasis.

The Panel confirmed that it was not bound to restrict its consideration to the narrow terms of complaint but might consider the packaging under any section of the Code that it considered relevant, as set out in paragraph 5.20 of the Code. The Panel also noted that it could consider the Code rule cited by the complainant more broadly and was not restricted to making a decision on the grounds given by the complainant.

The Panel therefore considered the figure “8.5”. They noted it was printed in large, white numbers and considered that this was a prominent feature of the design. They noted the packaging did not include information about the alcohol unit content or a message indicating that the can was intended for sharing. The Panel considered that the overriding impression was that the product was “strong stuff”, although they acknowledged that this effect might have been inadvertent. The Panel was concerned that the presentation of “8.5” emphasised the higher strength of the product, relative to other products in the lager category, and was further concerned that this might appeal particularly to those who were vulnerable, in this case because of their drinking. The Panel noted that for the first time, the introduction to the new Code referred to consumers who may be vulnerable. They concluded that the “8.5” element of the design went beyond giving factual information and gave the higher alcoholic strength undue emphasis. The Panel therefore upheld the complaint under rule 3.2(a).

The Panel also considered whether the product encouraged irresponsible or immoderate consumption. The Panel noted the Advisory Service’s guidance for the new Code, which they had seen and discussed at a previous meeting, and in particular the guidance that:

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

The Panel calculated that the product contained 4.25 units of alcohol. They noted that the can was not resealable and that it did not prompt consumers to share the contents, and considered that the contents would be typically consumed by one person in one sitting, as had been confirmed by recent research showing that consumers regarded this type of container as a single-serve product.. The Panel considered that single-serve containers containing more than four units of alcohol were at risk of encouraging immoderate consumption but that, when the unit content was close to four units, they should consider the packaging carefully before reaching a decision. They considered factors that would reduce the risk of encouraging immoderate consumption, such as a recommendation to share the contents, per-serve messaging or information about responsible drinking, but found that the packaging did not include these messages. After considering all the features of this packaging, the Panel concluded that it encouraged immoderate consumption. The complaint was upheld under rule 3.2(f).

Action by Company

The company agreed to remove the product from the market.

To find out more, read the press release here.

Company: Purity Brewing
Breach: Yes
Final Decision: 30 January 2020

Considered under the 6th Edition of the Code.

Complaint summary

“Possible association with illegal behaviour – the product is named Lawless (not governed by or obedient to laws; characterized by a lack of civic order). The rear of the can mentions ‘Lawless is a maverick beer’ and ‘is a law unto itself'”.

Complainant

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

Decision

Under Code paragraph 3.2(b)

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

UPHELD

The company’s submission

The company firstly stated they did not believe Lawless was in breach of the Code. The company stated that Purity set out in 2005 with the simple mission to brew great beer without prejudice, with conscience, consistency and attention to detail second to none. The company stated the name Lawless was related to how the beer was made and perceived.; Known for high quality and full flavour, it grew to be their largest selling keg and can product. The company said mainstream lager was referred to as tasteless golden fizzy liquid. The company stated Lawless has been described as maverick, going against the grain of how many lagers are brewed. The company highlighted the minimal maturation and perceived minimum flavour of many lagers. The company said Lawless deviated from the norm and was full of character, flavour, unfiltered, unpasteurised and matured for 40 days. The company explained being a maverick meant they were unconventional and independent. The company stated that it did not make them lawbreakers, but independent thinkers with a desire to challenge the norm, which Lawless Lager did. The company stated that, as seen in their other brands, they were not a brewery set up to create havoc or cause offence. The company explained their core values: pure quality (grain to glass), pure eco (sustainable practices) and pure community (engaging their local audience). The company also explained they endeavoured to link the brand to the animals on their farm; with limited space on the can the company believed this was the best way to connect to the customer with a real-life, relatable story. The company explained why they chose Bruno the goat. In their words like the product he was a cheeky little character who roamed the farm and brewery; not willing to follow the crowd. He often broke out of his yard and set his own lesser trodden path around their farm.

In the company’s response to the provisional decision that the product breached Code rule 3.2 (b), the company highlighted they had previously spoken to the Advisory Service and were concerned about the prospect of changing the name of their 4th largest beer brand after 5 years on the market. The company explained Lawless was an internationally award-winning beer brand, and accounted for 10% of their revenue across cans and keg. The company stated changes to the brand name were a huge risk and could impact sales through consumer recognition and delists.

The company listed the costs included (which in their opinion outweighed recommended outcome):

The company stated the name Lawless never appeared alone, instead the name was ‘Lawless Unfiltered Lager’; this described the product and was not inciting illegal behaviour in the customers. The company stated their three core values were sustainability, quality and community, and since the outset they had taken the Portman Code as guidance. The company said it was happy to reconsider the romance copy which supported the product by working with the Portman Group.

The Panel’s assessment

The Panel expressed concern that the name “Lawless” suggested an association with illegal behaviour.

The Panel noted the text on the back of the can, which said “Lawless is our maverick beer named after our farmyard fiend, Bruno the goat. Just like our lager he is law unto himself, full of character with a sharp kick!”. The Panel acknowledged that the producers were a small company challenging the established order in their industry and understood that they intended to convey that spirit. The Panel considered, however, that the text on the back of the can was not enough to prevent the name “Lawless” from being seen as a reference to illegal behaviour.

The Panel noted the producer’s argument that the name of the product was ‘Lawless Unfiltered Lager’ and that ‘Lawless’ never appeared in isolation. The Panel also noted the wording on the back of the can, however, which stated ‘Lawless is our maverick beer’ and ‘Lawless is brewed with a big dose of El Dorado hop’. The Panel rejected the argument that ‘Lawless’ was only ever used as part of the phrase ‘Lawless Unfiltered Lager’.

The Panel discussed the image of the goat and the explanation around the name. Whilst the line drawing of the goat on the front of the can was not a problem in itself, the connection between the animal and the name as a motivation for the “Lawless” branding was not sufficient. The Panel concluded that the name would still be problematic, even with more extensive text linking the artwork to the name.

The Panel agreed that to be a maverick or breaking the mould was not the same as breaking the law, and considered that positioning a beer as “maverick” or highlighting quirky or mould-breaking qualities could be acceptable under the Code, whereas a reference to breaking the law was unacceptable.

After considering all the arguments put forward, the Panel maintained their view that ‘Lawless’ was fundamentally incompatible with the rule that alcohol products should not suggest any association with illegal behaviour. They emphasised that their concern was about the product name alone and they believed the Code breach to be unintentional. The Panel considered that the name ‘Lawless’ directly implied breaking the law, which was by definition illegal behaviour. Therefore, it could not be justifiable through content given the nature of the Code. The complaint was therefore upheld under Code rule 3.2(b).

Action by Company

To be confirmed.

To find out more, read the press release here.

Company: Brouwerij Huyghe
Breach: No
Final Decision: 12 December 2019

Considered under the 6th Edition of the Code.

Complaint summary

“The product name and pink elephant image directly promotes enhanced mental capabilities, therapeutic qualities and mood altering effects. Delirium means a serious disturbance in mental abilities and confused state. The pink elephant is a euphemism for drunken hallucination.”

Complainant

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

Decision

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 formal response was submitted by the company that imported Delirium to the UK, James Clay.

The company said they were not signatories to the Code.  They asked the Panel to consider information about the brand, brewery and history.

The company stated that Delirium Blonde had been sold in the UK for several decades.  They said they had worked with the Portman Group to change the packaging in 1999 and had received no complaints since then. They noted the complaint was not from a member of the public but had been raised as the result of an audit commissioned by the Portman Group.

The company stated De Huyghe Brewery was founded in 1654 and had been making beer on the same site for centuries. They explained that the Huyghe family bought the brewery in 1906, the brewery had remained in the family’s ownership since then and Delirium Blonde had been produced by the family brewery since 1988. The company said the name, colour scheme and elephant logo were world famous and had helped to establish Delirium as one of the most recognisable and widely-sold Belgium beers. They stated that Delirium Blonde was sold globally, was highly celebrated, and had won numerous prestigious awards. The company argued that the colour, name and logo could not be changed without irreparable damage to the brand.

The Panel’s assessment

The Panel acknowledged the changes made by the producer after a Panel decision in 1999. The Panel noted the product had previously been marketed as Delirium Tremens and continued to be sold under that name outside the UK.

The Panel discussed whether the name Delirium was fundamentally problematic by making a connection to disturbances in mental ability or feelings of elation.  The Panel discussed the wording of rule 3.2(j) and noted that, while some rules required that packaging should not “suggest any association with” certain activities or qualities, the wording of 3.2(j) required that packaging should not “suggest that a product has therapeutic qualities, can enhance mental […] capabilities, or change mood or behaviour”.  The Panel considered that 3.2(j) meant that packaging should not directly or indirectly suggest that the product had a certain effect but did not prohibit “any association with” such effect.  They considered whether the packaging of Delirium made such suggestions.

The Panel also referred to its previous decision on Suicyder, which had been found in breach of rule 3.2(b): the Panel noted that decision was based not just on the product name but also the imagery showing a noose, which made a visual link to suicide.

The Panel discussed the imagery on the Delirium label.  They acknowledged that pink elephants could be a euphemism for drunken hallucinations but considered that the cultural association was not so strong that the elephant amounted to a suggestion that the product could induce hallucination.  The Panel agreed that neither the pink elephant nor the dancing crocodiles suggested that the product caused delirium.  After discussing the packaging at length, the Panel considered there were no claims or cues that implied the product could alter mental capabilities or change mood and behaviour.

The Panel welcomed the removal of the word Tremens and considered that the change alleviated its concerns about the product name. The Panel stressed that care should be taken when using a name like Delirium: they made clear that their decision was specific to this product and that the word “delirium”, and similar words, would be considered on a case by case basis, taking the full context of the packaging into account.

After carefully discussing the packaging and considering the overall impression conveyed, the Panel concluded that the product did not breach rule 3.2(j).  The complaint was not upheld.

Action by Company

No action required.

Company: Trinchero Family Estates
Breach: Yes
Final Decision: 12 December 2019

Considered under the 6th Edition of the Code.

Complaint summary

“References to sexual activity or sexual success – the wine is named Ménage à Trois (a domestic arrangement in which three people having sexual relations occupy the same household) The text on the rear of the bottle mentions ‘satisfying your deepest desires’ ‘turning out the lights and savouring the pleasures of the dark’”.

Complainant

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

Decision

Under Code paragraph 3.2(d)

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

UPHELD

The company’s submission

The company first explained the context for the name and packaging; the wine contained a blend of three red variates, created in 1996 by the Folie á Deux winery. The company stated the name was a whimsical play on blending three different grape varietals into a pleasing arrangement. The company explained the product had captured wine lovers’ imaginations through word of mouth, and the range had expanded into white, red and rosé blends.  They said the range continued to grow after the Ménage à Trois brand was added to Trinchero Family Estates’ portfolio in 2004. The company also stated they Ménage à Trois was credited with creating the Red Blend category and defining the U.S. domestic Super Premium Red Blend segment, and the product was iconic within the wine industry. The company highlighted that the Ménage brand comprised 21 wine varietals and blends, including Midnight, Silk, Gold and Decadence.

The company stated Ménage Midnight, launched in 2014, was a special, luxurious dark red blend of principally merlot, cabernet sauvignon, and petite sirah grapes. The company addressed Zenith’s concerns around the phrases “satisfy your deepest desires’ and “turn out the lights and savour the pleasures of the dark”: they said these were joyful and provocative references that clearly referred to the relationship between the consumer and the wine, and the wine’s promise to be deeply satisfying and suitable for savouring in the dark. The company stated they disagreed with the complaint that the name or packaging suggested any inappropriate association with sexual activity or sexual success.

The company stated they have been family owned for over 70 years, and their first priority was the quality, good will and reputation of their products. The company explained the Ménage à Trois brand represented a significant and long-term investment of marketing resources, effort and time. The company stated they had always endeavoured to abide by the codes of conduct in its export markets and would continue to do so. The company also stated Ménage à Trois products had been distributed in the US for over 20 years without complaint from either of the U.S. government agencies that regulate alcohol beverage advertising, the Alcohol and Tobacco Tax and Trade Bureau, or the Federal Trade Commission. The company also said the that the Wines Institute (the US wine trade association) had an almost identical Code but no complaints had been filed.

The Panel’s assessment

The Panel first discussed whether the name Ménage à Trois was fundamentally problematic under the Code. The Panel agreed that in common parlance the phrase was linked to sexual activity, however they also agreed there were alternative definitions. The Panel referenced the term having been used to describe political relationships as an example of a figurative meaning to the phrase. The Panel compared this name to M&S’ Pornstar Martini (upheld under 3.2(d)) and decided there was a difference between the two. The Panel pointed out that there was only one definition for Pornstar and, unlike Ménage à Trois, this was only ever sexual. The Panel also raised the point that children were unlikely to understand or ask the meaning of a French phrase on a wine bottle. It was therefore concluded that the name was not inherently problematic.

The Panel accepted that the name was word play for the blend of three grape varietals used in the making of the wine. However, the Panel emphasised that, given the sexual connotations of the name, a producer using Ménage à Trois would have to work much harder to ensure it was not making a direct link to sex. The Panel agreed that the producer deliberately made this link on their label, highlighting phrases like ‘… savour the pleasures of the dark’. For the Panel this marketing went too far and directly connected the name Ménage à Trois to sex, and therefore breached the Code. The Panel noted that this could be alleviated by emphasising the name’s connection to how the product was made.

The Panel acknowledged the innovative nature of the product and its success within the US market. They agreed that if the product had been called ‘Ménage Midnight’ (as it had been in the Company’s submission), it would be less problematic. The Panel stressed that with a name that is so commonly linked to sexual activity, the Producer must work harder to avoid the direct connection to sex. The Panel urged the Producer to avoid linking the sexual meaning of the name to the product and remove the text on the bottle which did this. The complaint was therefore upheld under 3.2(d).

Action by Company

Working with the Advisory Service.

To find out more, read the press release here.