Producer:
Northern Monk Brewery
Complaint:
“The word ‘wasted’ is common slang being very, very drunk – by using it in the name of the product and featuring it so prominently on the can, Northern Monk are encouraging immoderate consumption and unwise levels of drunkenness.
I understand that the product is made using hot cross buns that would otherwise be thrown away with the full name (“Wasted Hot Cross Bun Pale Ale”) being a reference to that, and that the can has other information that clarifies this. However, the word ‘wasted’ is in the largest font on the can and separated from the second half of the name, and the hashtag #STOPWASTINGFOOD is significantly smaller and placed at the bottom of the label. ‘Wasted’ is therefore the most prominent word on the packaging, with the layout drawing attention to the word by itself rather than the novel nature of the ingredients. The clarification of the ingredients elsewhere is insufficient to mitigate the presentation of the word.”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.2(f)
A drink, its packaging and any promotional material or activity should
not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness.
UPHELD
The company’s submission:
The company explained that one of its core values was ‘community’ and was disappointed to learn of the complaint. The company stated that it consciously considered the positioning and impact of its products within communities at all stages of conception and that it intended to work co-operatively with the Portman Group to address the concerns raised without diluting the intended impact of its messaging.
The company stated it was one of the most premium craft breweries in the UK and a champion of safe and responsible drinking. The company explained that, for context, it was operating in challenging marketing conditions which had led to the closure of many breweries.
The company stated that Wasted Hot Cross Bun Pale Ale was a beer series developed in collaboration with a charity called Surplus to Purpose. For every purchase of the beer, a donation was made to the organisation. The company explained that there was a £20 billion food waste crisis in the UK, and the intention of the beer was to highlight, contribute and raise funds for the social mission. The company noted that due to the nature of the charity and the social mission, there were limited ways to articulate the issue to consumers without including the word ‘wasted’ on the drinks packaging.
The company explained that it was dedicated to continuing to support the issue and its partners, and that it would be willing to make minor changes if required to ensure the context of ‘wasted’ was clear. However, the company warned that significant changes to the wording on the drinks packaging would dilute the impact of the message and in turn affect the ability of the product to highlight the issue and fundraise for the charity.
The Panel’s assessment:
The Panel considered the producer’s response and acknowledged that Wasted Hot Cross Bun Pale Ale was intended to generate discussion about food waste in the UK and that some proceeds from product sales went to support the charity Surplus to Purpose.
The Panel assessed the overall impression conveyed by the packaging under Code rule 3.2(f). The Panel noted that the word ‘Wasted’ appeared prominently on the front of the label above an image of a hot cross bun, with the text ‘hot cross bun’ and ‘#stopwastingfood’ appearing in a smaller font at the bottom of the packaging. When assessing the product in its entirety, the Panel also considered that there were no other cues on the packaging which denoted drunkenness or immoderate consumption on either the front or back label. In addition to this, the Panel noted the complainant had identified the intention behind the product name and that it was therefore likely that other consumers would also understand the context of its use.
The Panel then discussed the term ‘wasted’ in the context of an alcoholic drink which typically referred to drunkenness or immoderate consumption and expressed fundamental concern about the phrase being used in a tongue in cheek way on an alcoholic product. The Panel considered that most consumers would be familiar with the slang interpretation of the word, and when included on an alcoholic drink, ‘wasted’ would be more readily associated with a style of consumption, rather than food wastage, despite its context on pack. The Panel discussed the producer’s response but disagreed that ‘wasted’ was the only language that could be used to promote its message of using surplus food rather than disposing of it. While the intended messaging of the drink was to promote an important social issue, the Panel was mindful of the need for precedents to leave a relatively narrow margin for the use of terms which describe drunkenness on alcohol packaging. Therefore, when considering the prominence of the word ‘wasted’ on the packaging, and the word’s
primary meaning in relation to alcohol, the Panel concluded that the packaging indirectly encouraged immoderate consumption and drunkenness. Accordingly, the Panel upheld the complaint under 3.2(f).
Action by Company:
Product has been discontinued.
Producer:
Northern Monk Brewery
Complaint one:
“I believe the name and main image on this packaging appeal particularly to children. While the background pictures and name font are unlikely to be of particular appeal by themselves, they also contribute to the childlike effect.
“As a family of beer lovers and home brewers, we have raised our 4 year old to understand what alcohol is and why he is not permitted to try it. He knows what a beer can looks like and that it contains alcohol, which he is aware can harm him and he should not drink it. He has never asked to try beer, and if you ask him in jest he will clearly refuse it and say that alcohol is not for children. However, when he saw his dad drinking this beer and heard that it was called Rocket Lolly, he became very upset that he wasn’t allowed to try it, even after we made clear it was beer.
“Of the dozens of different can designs he’s seen, this is the only one that has ever held appeal to him – appeal so strong that he’s upset about not being permitted a drink that he would ordinarily tell you off for pretending to offer him.
“Rocket ice lollies are a particularly childish product and the cartoon imagery is redolent of ice lolly packaging. The background images could have come straight from my son’s sheets of stickers and colouring books. While the brewery may argue that they aimed for nostalgia rather than childishness, this would miss the fact that rocket lollies are still highly popular with children and are not just an artefact of adults’ childhoods. The primary appeal here is to children, not to adults; the name and imagery are highly inappropriate for an alcoholic product.
“I was served sponsored search ads for these two ice lolly products today and the packaging for both struck me as almost identical to the can, even down to the background graphics. Many of the customer reviews specifically mention buying them for children.”
Complainant:
Member of the public
Complaint two:
“Northern Monk Rocket Lolly IPA.
“Appealing to under 18 using a specific type of ice lolly for name and images. Whilst IPA is mentioned on the can this is in a darker colour and is not clearly visible”
Complainant two:
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 and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s.
UPHELD
The company’s submission:
The company explained that one of its core values was ‘community’ and was disappointed to learn of the complaint. The company stated that it consciously considered the positioning and impact of its products within communities at all stages of conception and that it intended to work co-operatively with the Portman Group.
The company stated it was one of the most premium craft breweries in the UK and a champion of safe and responsible drinking. The company explained that, for context, it was operating in challenging marketing conditions which had led to the closure of many breweries.
The company explained that Rocket Lolly IPA was designed to celebrate heritage and nostalgic food and drink experiences, with the packaging intended to be reminiscent of Rocket Lolly packaging popular in the 1980s and 1990s. The company explained that the drink retailed at a price which was double the cost of a pack of eight rocket ice lollies. The company stated that the beer was a strawberry, orange and pineapple IPA which was marketed at discerning consumers who enjoy the exploration of culinary inspired beers.
In light of the complaints received about the product, the company explained that it had taken the decision to remove Rocket Lolly IPA from production and only had minimal stock left with select retailers.
The Panel’s assessment:
Code rule 3.1
The Panel first considered whether the packaging of Rocket Lolly IPA communicated its alcoholic nature with absolute clarity as raised by the second complainant. The Panel considered that the overall theme of the beer was based on a type of frozen lolly, namely a ‘rocket lolly’ which was traditionally shaped like a rocket and used the colours red, orange and yellow to represent three fruit flavours. The Panel noted that the front of the packaging included a large image of a rocket lolly, the flavour descriptor ‘Strawberry, Orange and Pineapple’, and the name of the drink ‘Rocket Lolly IPA’.
The Panel also noted that the colour palette employed for the word ‘rocket’ incorporated bold elements of red, orange and yellow, surrounded by a black bold outline, which stood out against the predominantly dark purple label. In addition to this, the word ‘lolly’ had been presented clearly in white font on the dark purple background. In contrast to this, the Panel observed that the alcoholic descriptor ‘IPA’ and the drink’s alcoholic strength by volume (ABV) of 4.7% were both presented on the front label in a comparatively small black font which was not easily visible against the dark purple background. The Panel noted that the front and side label did include references to hops but considered that in the context of the above, neither reference was presented as clearly as other information on pack.
The Panel then assessed the packaging in its entirety and noted that there were some positive alcohol cues on the back label, such as the product’s ABV and the unit content of the drink. However, on balance, the Panel considered that in the context of a well-known frozen ice lolly which made a virtue of its fruit flavours in design, and was not a product typically associated with alcohol, the packaging should work harder to ensure that it communicated its alcoholic nature with absolute clarity. In this instance, the Panel concluded that the comparatively small black font used for the product’s alcoholic signifiers on a dark purple background were difficult to read and not as prominent as the product’s direct link to a non-alcoholic frozen ice lolly which could cause confusion for consumers as to whether the drink contained alcohol. Therefore, the Panel did not consider that the packaging of the drink communicated its alcoholic nature with absolute clarity and accordingly upheld the complaint under Code rule 3.1.
3.2(h)
The Panel then considered whether the packaging had a particular appeal to under-18s as raised by both complainants. The Panel discussed the producer response which stated that the intention of the branding was to invoke a sense of nostalgia for adult consumers who enjoyed rocket lollies in their childhood. The Panel considered the appeal of rocket lollies and noted that as a frozen lolly they were still readily available and enjoyed by children today, noting in particular that the frozen lolly was typically retailed alongside other frozen lollies aimed at children. The Panel acknowledged that while some adults may enjoy rocket lollies, the frozen lolly strongly resonated with, and was primarily marketed at, young children. Whilst the Panel acknowledged that such appeal could sometimes be unintentional, in the sense that a producer may not intend to appeal to a younger age group, the Panel encouraged alcohol producers to take care when trying to invoke a sense of childhood nostalgia in adults so as not to include elements which could have particular appeal to
contemporary children.
In that context, the Panel then assessed the overall impression conveyed by the packaging. The Panel discussed the recent findings of a Kids Industries report commissioned by the Panel and the Portman Group, entitled ‘Marketing that Appeals to Under-18s’. The Panel noted that the label included bright contrasting colours, a cartoon image of a rocket lolly with a bold black keyline, thick outlined fonts and onomatopoeic phrases. The Panel also noted the inclusion of a white explosion on the front label which read as ‘Blast Hop!’ and was reminiscent of speech bubbles in some comics. The Panel considered the combination of all these elements, in the context of a rocket lolly theme which had a particular appeal to under-18s in and of itself and concluded that the product packaging had a particular appeal to under-18s. Accordingly, the Panel upheld the complaints under Code rule 3.2(h).
Action by Company:
Product has been discontinued.
Producer:
Tiny Rebel
Complaint one:
‘… Tinyfast is questionable as well in its use of SlimFast’s branding to associate itself, even subconsciously, with health benefits, violating rule 3.2(j).’
Complainant one:
Member of the public
Complaint two:
‘The branding of these products is designed to mislead, they are clear facsimiles of popular other products that are very obviously not alcoholic, the risk to the public is high (underage alcohol sales (energy drinks), identifying with health products (… slimfast)) due to the intentional duplication of branding, colours & typeface’
Complainant two:
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(f)
A drink, it’s 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
Under Code paragraph 3.2(g)
A drink, its packaging or promotion should not urge the consumer to drink rapidly or to ‘down’ a product in one.
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.
UPHELD
The Company’s Submission
The company did not submit a response to the complaint.
The Panel’s Assessment
Code Rule 3.1
The Panel considered the packaging of TinyFast and noted that the can had a significant resemblance to a SlimFast Strawberry Meal Shake, which did not contain alcohol, including a similar style of iconography, imagery, colour palette and name. Due to the similarity between the alcoholic drink and a non-alcoholic meal shake, the Panel raised Code rule 3.1 for discussion and considered whether some consumers would struggle to identify the alcoholic nature of TinyFast.
The Panel assessed the packaging and noted that the can included the descriptor ‘Strawberry Milkshake IPA’ and the product’s alcoholic strength by volume (ABV) on the front label. The Panel noted that the descriptor ‘IPA’ had been partly considered in a previous decision regarding ‘Easy IPA’. The ‘Easy IPA’ decision had set a precedent which established that while some consumers may be unfamiliar with the term ‘Session IPA’, a product’s overall impression should be considered when determining whether a product communicated its alcoholic nature with absolute clarity. The Panel reviewed the TinyFast back label and noted that it included multiple positive alcohol references to ‘beer’, ‘brewed’, a pregnancy warning logo, the product’s 5.8 % ABV and unit content. After considering the label in its entirety, the Panel concluded that there was sufficient information to communicate the drink’s alcoholic nature with absolute clarity, despite its similarity with a non-alcoholic drink. Accordingly, the Panel did not uphold the complaint under Code rule 3.1.
Code Rule 3.2(e)
During discussion, the Panel noted that text on the back of the packaging stated ‘We’re on a mission to bring you goods times with a hint of beer. We do this by creating brands that will capture your imagination and defy your senses’ and raised Code rule 3.2(e) for discussion. After careful consideration, the Panel considered that the context of the line was clear, and purposely linked the referenced ‘good times’ to the brand’s imagination, rather than linking consumption of the product to social success or popularity. Accordingly, the complaint was not upheld under Code rule 3.2(e).
Code Rule 3.2(j)
The Panel discussed whether the packaging suggested, directly or indirectly, that the drink had therapeutic qualities, could enhance mental or physical capabilities, or change mood or behaviour. The Panel considered that the packaging of TinyFast was a facsimile of a SlimFast Strawberry Meal Shake with the label intentionally mimicking the branding and flavour. The Panel noted that SlimFast was a well-known adult meal replacement drink that was used by consumers to aid in weight loss, or to help maintain a healthy weight. The Panel considered that as the SlimFast brand was synonymous with a health drink, the average consumer could consider that TinyFast with its near identical branding, and name, indirectly implied the drink shared the same weight loss properties. The Panel also noted that this association was particularly problematic in the context that some beers were considered fattening.
While the Panel acknowledged that the packaging of TinyFast did not include any direct health claims, the product descriptor text on the company’s web page included the line ‘Our ‘Cos Jan’s Bad Enough Beers are all made with love and fun to help chase away the January blues..’. The Panel also noted that the product had been launched as part of a wider range in January, a month that in recent years had become linked to health goals and giving up certain products or types of food and drink. The Panel considered that the product’s marketing reinforced the perception that consumption of the drink could help change a consumer’s mood to chase away the January blues, and that the drink indirectly suggested that it had a therapeutic quality. In addition to this, the Panel also considered that the product’s mimicry of SlimFast meant that the product’s packaging indirectly implied it could change mood and behaviour by enabling consumers to make better dietary choices and lose weight more successfully than they would otherwise be able to. Accordingly, the Panel upheld the complaint under Code rule 3.2(j).
Code Rule 3.2(f)
In the context that the packaging suggested the product had weight loss properties, and was mimicking a meal replacement drink, the Panel then considered whether there was anything on the packaging of TinyFast which could encourage a consumer to drink irresponsibly as raised by the complainant. The Panel considered the complainants’ wording carefully and noted that complainant two was concerned that the product was designed to mislead and had raised Code rule 3.2(f) which included the wording ‘irresponsible consumption’. The Panel assessed the packaging in its entirety and considered that it was socially irresponsible for an alcoholic drink to create an association with a health product known for being a meal replacement. After careful consideration of the Code rule 3.2(f) wording, and in the context of its decision under Code rule 3.2(j), the Panel considered that if a consumer believed that the product was a meal replacement, or had weight loss properties, this could indirectly encourage a consumer to drink it to excess in order to gain the inferred health benefits of the product. The Panel considered that a consumer may then base their alcohol consumption on the purported health benefits of the product, as opposed to making an informed consumption choice based on the amount of alcohol in the product and this, the Panel concluded, could reasonably lead to irresponsible consumption as a consumer might consume more than they otherwise would have done. Accordingly, the Panel upheld the complaint under Code rule 3.2(f).
3.2(g)
As part of the discussion about whether the product indirectly encouraged irresponsible consumption, the name ‘TinyFast’ was discussed from the perspective that it may encourage ‘fast’ consumption. The Panel considered that the word ‘fast’ in the product name created a link to a style of consumption and encouraged a consumer to drink the product rapidly. Accordingly, the Panel also upheld the product under Code rule 3.2(g).
3.2(h)
Finally, the Panel considered whether the can had a particular appeal to under-18s. The Panel discussed that while there were similarities between the packaging of TinyFast and a SlimFast Strawberry Meal Shake, which was targeted at an adult audience, young children were unlikely to be aware of the similarities between the two brands. In that context, the Panel considered the overall impression conveyed by TinyFast and noted that it included the image of a strawberry milkshake, strawberry fruit, the text ‘strawberry flavour’ and the descriptor ‘Strawberry Milkshake’ which was positioned above ‘IPA’ and the drink’s ABV. The Panel discussed the positioning of a beer as a milkshake and noted that a ‘milkshake IPA’ was known in the industry as referencing an IPA brewed with lactose and was likely to be understood by beer consumers. Alongside this, the Panel also noted that a strawberry milkshake, as a non-alcoholic sweet beverage, was likely to have appeal to under-18s and that there were multiple strawberry milkshake products designed specifically for children. The Panel noted that in this instance the front label included an image of a milkshake with dripping sides and strawberry fruit depicted in an illustrated style, which it considered, in combination with the above points, was likely to appeal to children.
The Panel then discussed the company’s corporate bear logo and noted previous case precedents that reviewed its compliance under the Code (Cali Pale, Bump n’ Grind, Cherry Bomb, Clwb Tropica, Clwb Tropica Four Pack, Double 99, No Capes, Original Nuttah 2021). The Panel discussed that while the bear did not necessarily breach the Code in itself, it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance.
When considering the bear logo on the front of the can, in the context of a strawberry milkshake flavoured drink, with product artwork that made the strawberry milkshake a dominant theme of the packaging, the Panel concluded that the overall impression conveyed was likely to have a particular appeal to under-18s. Accordingly, the complaint was upheld under Code rule 3.2(h).
Action by Company:
To be confirmed.
Producer:
Tiny Rebel
Complaint:
‘Branding based clearly on Prime, the hot new drink aimed towards children. Incredibly blatant, undeniable attempt to latch onto that appeal. Prime has been heavily pushed by social media influencers – implied by the link to Prime’s branding is that Primed also confers these popularity benefits…..As with the Primed… which besides all of its associated claims of improved awareness, awakeness and other benefits, is also brightly coloured and aimed at under 18s.’
Complainant:
Member of the public
Decision:
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(f)
A drink, it’s 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
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.
UPHELD
The Company’s Submission
The company did not submit a response to the complaint.
The Panel’s Assessment
Code Rule 3.2(h)
The Panel considered the product packaging carefully and noted that in the most part it employed the use of a blue background with the product name ‘Primed’ displayed in thick black font with a white outline. The Panel noted that the branding of ‘Primed’ was a facsimile of ‘Prime’, a well-known hydration drink, which had been created by popular social media personalities, Logan Paul and KSI. The Panel discussed the popular cultural phenomenon that had surrounded ‘Prime’ since it launched in the UK and noted that its popularity was primarily driven by those under-18, with whom it was seen as a highly sought after status symbol. The Panel noted that media coverage often portrayed parents and children queuing in long lines outside of shops to purchase the product as its supply had not met demand since its launch, contributing to its scarcity. The Panel considered that while the Prime Hydration version of the drink could be purchased by all age groups, it was particularly popular with school aged children and teenagers.
The Panel considered the packaging of Primed and noted that the label employed the same font, colour, flavour and style as ‘Prime’. The Panel discussed accompanying guidance to Code rule 3.2(h) and noted that producers were cautioned against using personalities that were particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children as these could be problematic under the Code. While guidance did not explicitly reference branding which could have a particular appeal, the Panel considered that some branding could particularly resonate with under-18s in much the same way a celebrity or character could.
The Panel then discussed the company’s corporate bear logo and noted previous case precedents that reviewed its compliance under the Code (Cali Pale, Bump n’ Grind, Cherry Bomb, Clwb Tropica, Clwb Tropica Four Pack, Double 99, No Capes, Original Nuttah 2021). The Panel discussed that while the bear did not necessarily breach the Code in itself, it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance. In this instance, the Panel noted that it appeared on the front label in the context of a product which was particularly popular with under-18s.
After careful consideration, the Panel concluded that due to the inherent similarity with the non-alcoholic Prime Hydration drink, which was particularly popular with school aged children and teenagers, the packaging of Primed, which included the company’s bear logo on the front label, did have a particular appeal to under-18s. Accordingly, the Panel upheld the complaint under Code rule 3.2(h).
Code Rule 3.2(e)
In the context that Prime was seen as a status symbol amongst youth culture, the Panel discussed Code rule 3.2(e) to determine whether the packaging of Primed suggested that consumption of the drink could lead to social success or popularity, as raised by the complainant. The Panel discussed the marketing tactics that had framed the launch of the non-alcoholic Prime drink and noted that supply issues had increased demand and partly led to a popular cult following with many seeing the product as an aspirational item and status symbol. However, the Panel considered that this did not necessarily suggest that consumption of the alcoholic Primed drink could make a consumer popular. The Panel carefully assessed the packaging of Primed in its entirety and considered that the similar branding alone was not enough to indirectly suggest that consumption, as opposed to purchase, could aid a consumer socially.
During discussion, the Panel noted that text on the back of the packaging stated ‘We’re on a mission to bring you goods times with a hint of beer. We do this by creating brands that will capture your imagination and defy your senses’. After careful consideration, the Panel considered that the context of the line was clear, and purposely linked the referenced ‘good times’ to the brand’s imagination, rather than linking consumption of the product to social success or popularity.
The Panel noted that there was nothing else on the packaging of Primed which suggested that consumption of the drink could lead to social success or popularity. Accordingly, the complaint was not upheld under Code rule 3.2(e).
Code Rule 3.2(j)
The Panel then considered whether anything on the packaging of Primed, directly or indirectly, suggested the drink had a therapeutic quality as raised by the complainant. The Panel noted that the non-alcoholic version of Prime came in two versions: Prime Hydration and Prime Energy. The Panel noted that Prime Energy was packaged in a 355ml can format, as opposed to a plastic 500ml bottle for Prime Hydration. The Panel also noted that Prime Energy presented the ‘Prime’ typeface in bold white letters while Prime Hydration presented the typeface in bold black letters with a white outline, the design used on the alcoholic Primed drink. The Panel considered that Prime Hydration did not contain any stimulant ingredients, such as caffeine, and consisted of coconut water and electrolytes. The Panel noted that while Prime Hydration was not an energy drink, it was marketed as a performance enhancing drink.
The Panel discussed the similarities between the design of Primed and Prime Hydration. The Panel considered that because the branding, name and flavour of Primed intentionally mirrored Prime Hydration, the alcoholic version of Primed indirectly suggested that it could fulfil the same purpose of the original brand, and thus inferred the same therapeutic effect. The Panel considered that it was particularly irresponsible for an alcoholic drink, which had a dehydrating effect, to mimic branding for a product that was known for its hydrating effect.
While the Panel acknowledged that the packaging of Primed did not include any direct health claims, the product descriptor text on the company’s web page included the line ‘Our ‘Cos Jan’s Bad Enough Beers are all made with love and fun to help chase away the January blues..’. The Panel also noted that the product had been launched as part of a wider range in January, a month that in recent years had become linked to health goals and giving up certain products or types of food and drink. The Panel considered that the product’s marketing reinforced the perception that consumption of the drink could help change a consumer’s mood to chase away the January blues, and that the drink indirectly suggested that it had a therapeutic quality. Accordingly, the Panel upheld the complaint under Code rule 3.2(j).
Code Rule 3.2(f)
In light of the above, the Panel agreed that there was merit in discussing whether the drink’s packaging encouraged irresponsible consumption. The Panel assessed the packaging in its entirety and reiterated that it was socially irresponsible for an alcoholic drink to create an association with a non-alcoholic drink known for its hydrating and performance enhancing effect, particularly when alcohol had a dehydrating effect. After careful consideration of the Code rule 3.2(f) wording, and in the context of its decision under Code rule 3.2(j), the Panel considered that if a consumer believed that the product had a hydrating effect, or was performance enhancing, this could indirectly encourage a consumer to drink it to excess in order to gain the inferred health benefits of the product. The Panel considered that a consumer may then base their alcohol consumption on the purported health benefits of the product, as opposed to making an informed consumption choice based on the amount of alcohol in the product and this, the Panel concluded, could reasonably lead to irresponsible consumption as a consumer might consume more than they otherwise would have done. Accordingly, the Panel upheld the complaint under Code rule 3.2(f).
Action by Company:
Product has been discontinued.
Producer:
Tiny Rebel
Complaint one:
‘… this is clearly based on the branding of Monster energy drink, which besides all of its associated claims of improved awareness, awakeness and other benefits, is also brightly coloured and aimed at under 18s.
The energy drink Monster has associations with bravado (heavy sponsorship of motorsports such as NASCAR and Rally America) and aggression (tagline “unleash the beast”). By nodding to its branding, Tiny Rebel naturally inherit all of those associations, in a product also containing alcohol.’
Complainant one:
Member of the public
Complaint two:
‘The branding of these products is designed to mislead, they are clear facsimiles of popular other products that are very obviously not alcoholic, the risk to the public is high (underage alcohol sales (energy drinks), identifying with health products…. due to the intentional duplication of branding, colours & typeface.’
Complainant two:
Member of the public
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.
NOT 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
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.
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.
UPHELD
The company’s submission
The company did not submit a response to the complaint.
The Panel’s assessment
Code rule 3.2(j)
The Panel discussed whether the packaging of Monstar suggested the drink had therapeutic qualities and could change mood and behaviour as outlined by the complainants. The Panel observed that the packaging was predominantly pink, with yellow highlights and a graffiti style typeface all of which closely resembled the branding of the well-known, non-alcoholic Monster Energy drink brand. The Panel noted that Monster Energy had a high caffeine content and included other known stimulant ingredients such as taurine. The Panel discussed the brand Monster Energy and noted that the brand’s advertising explicitly linked to behavioural effects such as increased energy, focus and effectiveness which was also implicit in the energy drink’s name. The Panel noted that Monster Energy’s advertising often created a link between the claimed energy effect of the product and increased performance in events like extreme sport and performance-related activities with the accompanying tagline ‘Unleash the Beast!’ compounding this direct link. The Panel considered that some consumers would recognise the strong similarity to Monster Energy branding, particularly those in younger age groups, and would also be familiar with the brand’s stimulant effect that was frequently linked to enhanced performance capabilities.
The Panel noted that Monstar did not include any stimulant ingredients and in the context of the Code, the inclusion of stimulant ingredients in an alcoholic drink was not inherently problematic as demonstrated through previous Panel decisions (Dragon Soop Range 2022 and Four Loko Range 2023). However, the Panel expressed significant concern that the branding, name and typeface of Monstar all intentionally mirrored the Monster Energy brand and was presented as the predominant theme of the packaging. On the basis that Monstar was presented as sharing the characteristics of a well-known energy drink capable of enhancing physical and mental capabilities the Panel concluded that Monstar indirectly suggested that it could fulfil the same purpose as the original brand, and thus inferred the same effect.
While the Panel acknowledged that the packaging of Monstar did not include any direct performance enhancing claims, the product descriptor text on the company’s web page included the line ‘Our ‘Cos Jan’s Bad Enough Beers are all made with love and fun to help chase away the January blues..’. The Panel also noted that the product had been launched as part of a wider range in January, a month that in recent years had become linked to health goals and giving up certain products or types of food and drink. The Panel considered that the product’s marketing reinforced the perception that consumption of the drink could help change a consumer’s mood to chase away the January blues. The Panel therefore concluded that Monstar indirectly suggested that it could enhance physical and mental capabilities, change mood and behaviour, and upheld the complaints under Code rule 3.2(j).
Code rule 3.2(f)
The Panel discussed whether the packaging encouraged illegal, irresponsible, or immoderate consumption as raised by one of the complainants. The Panel reiterated that the branding of Monstar was an intentional facsimile of Monster Energy which indirectly suggested that it could fulfil the same purpose as the original brand. In particular, the Panel noted that Monster Energy was primarily marketed on the basis that it could enhance performance and that this had become an inherent association with the brand. After careful consideration of the Code rule 3.2(f) wording, and in the context of its decision under Code rule 3.2(j), the Panel considered that Monstar’s mimicry of the Monster Energy brand was a dominant theme of the packaging and if a consumer believed that the product could enhance performance this could indirectly encourage a consumer to drink it to excess in order to gain the inferred benefits of the product. The Panel considered that a consumer may then base their alcohol consumption on the purported health benefits of the product, as opposed to making an informed consumption choice based on the amount of alcohol in the product and this, the Panel concluded, could reasonably lead to irresponsible consumption as a consumer might consume more than they otherwise would have done. Accordingly, the Panel upheld the complaint under Code rule 3.2(f).
Code rule 3.2(h)
The Panel then discussed whether the Monster Energy brand was likely to have a particular appeal to under-18s on the basis that the packaging of Monstar was a facsimile of the Monster Energy brand. The Panel discussed the Department of Health and Social Care’s consultation on ‘Ending the sale of energy drinks to children’[1], and noted as part of this that Monster Energy was popular with under-18s, particularly teenage boys, but was also consumed by adults. The Panel therefore considered that while Monster Energy was popular with under-18s and did have a certain level of appeal to a teenage age group, it had not seen enough evidence to suggest that this constituted a ‘particular’ appeal to under-18s.
The Panel then discussed whether anything on the packaging of Monstar had a particular appeal to under-18s in the context that the Monster Energy brand had a certain level of appeal to a teenage age group. The Panel discussed the company’s corporate bear logo and noted previous case precedents that reviewed its compliance under the Code (Cali Pale, Bump n’ Grind, Cherry Bomb, Clwb Tropica, Clwb Tropica Four Pack, Double 99, No Capes, Original Nuttah 2021). The Panel discussed that while the bear did not necessarily breach the Code in itself, it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance. In this instance, the Panel noted that it appeared on the front label in the context of a product which was popular with under-18s.
The Panel noted that the packaging was predominantly bright pink, with contrasting yellow elements outlined in black. The Panel discussed that the label included ‘doodle’ design images of decorated skulls, guitars, stars and hearts and the font was playful, edgy and in keeping with designs that would have strong appeal to a teenage audience. When assessing the packaging as a whole, the Panel concluded that in the context of an energy drink brand which was popular with under-18s, the prominence of the corporate bear logo, the imagery, contrasting bright colours and typeface all contributed to an overall impression which would have a particular appeal to under-18s. Accordingly, the Panel upheld the complaint under Code rule 3.2(h).
Code rule 3.2(b)
Finally, the Panel discussed whether the packaging created any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour. The Panel discussed whether the similarity in branding could create an association between Monstar and the sponsorship activities of Monster Energy; noting that Monster Energy sponsored an array of sports such as BMX, mountain biking, snowboarding, skateboarding and car racing as highlighted by the complainant. The Panel stated that while there was a strong similarity between the branding of the two drinks, there was nothing on the packaging of Monstar which directly or indirectly linked to the sponsorships undertaken by Monster Energy. Furthermore, the Panel noted that the Code did not prevent the sponsorship of such activities by alcohol producers, and that Monstar was not involved in such sponsorships. On this basis, the Panel did not consider that Monstar created an association with bravado, aggressive or dangerous behaviour.
The Panel then assessed the overall impression of the packaging and determined that there was nothing else on the label which created an association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour. Accordingly, the Panel did not uphold the complaint under Code rule 3.2(b).
Action by Company:
Product has been discontinued.
[1] Visram S, Cheetham M, Riby DM, et al Consumption of energy drinks by children and young people: a rapid review examining evidence of physical effects and consumer attitudes
Producer:
Tiny Rebel
Complaint:
‘The branding of these products is designed to mislead, they are clear facsimiles of popular other products that are very obviously not alcoholic, the risk to the public is high (underage alcohol sales (energy drinks), identifying with health products (huel….) due to the intentional duplication of branding, colours & typeface’.
Complainant:
Member of the public
Decision:
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
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.
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.
UPHELD
The company’s submission
The company did not submit a response to the complaint.
The Panel’s assessment
Code rule 3.2(j)
The Panel considered whether anything on the packaging of Hwyl, directly or indirectly, suggested that the drink had a therapeutic quality as raised by the complainant. The Panel assessed the packaging and noted that Hwyl was a facsimile of Huel, a meal replacement drink that had become widely popular over the past several years. The Panel noted that Huel was a nutritionally balanced ready to drink beverage, which was intended as a meal replacement product, packaged in a 500ml bottle. The Panel noted that Huel’s product website described the product as nutritionally complete powdered food containing all essential vitamins and minerals as well as a high concentration of fibre and protein. The Panel noted that the purpose of Huel was designed for weight maintenance, as opposed to explicitly linking to weight loss, but expressed fundamental concern that an alcoholic product was linking to a nutritionally complete health product designed to be a meal replacement. The Panel noted that the branding of Huel was predominantly white, with a small wrap of colour at the top of the bottle which related to the flavour of the drink. The type face was presented in block black capitals vertically along the front of the label. The Panel considered that the branding of Hwyl, which was packaged in a 440ml can, had a similar predominantly white label, with a yellow and brown pattern along the top of the can, and the name ‘Hwyl’, which when pronounced was phonetically the same as Huel, in block capitals also appearing vertically on the front of the packaging. The Panel discussed the similarities between the design of Hwyl and Huel and considered that because the branding, design and name intentionally mirrored Huel, the alcoholic version Hwyl indirectly suggested that it could fulfil the same purpose of the original brand as a nutritionally complete meal replacement, and thus inferred the therapeutic effect that it would make a consumer healthier. While the Panel acknowledged that the packaging of Hwyl did not include any direct health claims, the product descriptor text on the company’s web page included the line ‘Our ‘Cos Jan’s Bad Enough Beers are all made with love and fun to help chase away the January blues..’. The Panel also noted that the product had been launched as part of a wider range in January, a month that in recent years had become linked to health goals and giving up certain products or types of food and drink. The Panel considered that the product’s marketing reinforced the perception that consumption of the drink could help change a consumer’s mood to chase away the January blues, and that the drink indirectly suggested that it had a therapeutic quality as a nutritionally complete meal replacement. Accordingly, the Panel upheld the complaint under Code rule 3.2(j).
Code rule 3.2(f)
In the context that the packaging indirectly suggested the product had nutritional properties and mimicked a meal replacement drink, the Panel considered whether there was anything on the packaging of Hwyl which could encourage irresponsible consumption. The Panel assessed the packaging in its entirety and considered that it was socially irresponsible for an alcoholic drink to create an association with a health product known for being a meal replacement. After careful consideration of the Code rule 3.2(f) wording, and in the context of its decision under Code rule 3.2(j), the Panel considered that if a consumer believed that the product was a meal replacement, or had weight maintaining properties, this could indirectly encourage a consumer to drink it to excess in order to gain the inferred health benefits of the product. The Panel considered that a consumer may then base their alcohol consumption on the purported health benefits of the product, as opposed to making an informed consumption choice based on the amount of alcohol in the product and this, the Panel concluded, could reasonably lead to irresponsible consumption as a consumer might consume more than they otherwise would have done. Accordingly, the Panel upheld the complaint under Code rule 3.2(f).
Code rule 3.2(h)
Finally, the Panel considered whether the packaging of Hwyl could have a particular appeal to under-18s. The Panel noted that Huel was marketed as a ready to drink meal replacement beverage which was targeted at an adult audience as a convenient way to consume a nutritionally complete alternative to food. The Panel stated that it had not seen any evidence to support an assertion that Huel marketed to under-18s, and the brand did not, at this point, have a known strong appeal to under-18s. Given the similarity in branding, the Panel therefore concluded that Hwyl did not have a particular appeal to under-18s on the basis that it was a facsimile of Huel. The Panel then assessed the packaging in its entirety to determine if there was anything which could have a particular appeal to under-18s. The Panel noted the peanut butter flapjack flavour and considered that while the sweet flavour may appeal to children, it was also likely to appeal to adults and therefore had a ubiquitous appeal. The Panel noted that the label was fairly plain with a minimal colour palette as the majority of the can was white and used a bold black straight-line font for the product name. The Panel then discussed the company’s corporate bear logo and noted previous case
precedents that reviewed its compliance under the Code (Cali Pale, Bump n’ Grind, Cherry Bomb, Clwb Tropica, Clwb Tropica Four Pack, Double 99, No Capes, Original Nuttah 2021). The Panel discussed that while the bear did not necessarily breach the Code in itself, it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance. In this case, the Panel considered that in the context of the rest of the packaging, the corporate bear logo was unlikely to cause the can to have a particular appeal to under-18s. Taking the above into account, the Panel concluded that the overall impression conveyed by the packaging did not have a particular appeal to under-18s. Accordingly, the Panel did not uphold the complaint under Code rule 3.2(h).
Action by Company:
Product has been discontinued.
Producer:
Docks Beers
Complaint:
Product features wraparound artwork in the comic book / 80’s cartoon style with a superhero that they have created named “Carbon Catcher”. This would appear to be a straightforward contravention of the Code’s Rule 3.2(h). It is disappointing that neither the brewers nor the design agency they worked with on the product considered whether their design was responsible for a beer product – quoted from the media article:
“Rob Pritchard, Source 4’s managing director, said: “We have loved teaming up with Catch and Docks Beers to introduce Carbon Catcher. The superhero character was very deliberately conceived by our designer Kirk Arnold in a fun comic book style to make the process of carbon capture and storage accessible and engaging to a wider audience. “We’ve helped achieve this by utilising the character across various media channels, such as beer cans, beer mats, cardboard cut-outs, and a dedicated landing page, all of which provide more information on carbon capture in the Humber region.”
Additionally there may be an issue with Rule 3.1 because ‘Carbon Crush’ product can front has CRUSH as the dominant word in very large green lettering which could possibly be misunderstood by an under-18 to mean a fruit crush drink rather than an alcoholic drink. The IPA and ALC 5% VOL are in very much smaller lettering beneath.’
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(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.
UPHELD
The company’s submission
The company explained that Carbon Crush was created for a corporate client, Catch UK, to promote and demystify the process of carbon capture storage.
The company clarified that Catch UK was an industry-led partnership supported by businesses in Lincolnshire, Yorkshire and Humber. Catch UK spearheaded the Humber region’s ambition to decarbonise the area which was supported by its members and wider stakeholders. Catch UK were collaborating with partners to reduce industrial emissions in the area to net zero by 2040.
The company stated the purpose of the beer was to raise awareness of this goal and the opportunities available in the region, with a focus on lower carbon emissions. The company explained that Catch UK supported the use of technology which removed carbon dioxide permanently from industrial sources and stored it safely underground, known as Carbon Capture and Storage. The purpose of the Carbon Crush beer was to spread information to the wider community about what action could mean for them, their jobs and career prospects.
Given this was a complex message, the company explained that the name Carbon Crush was chosen because of its connotation with ‘crushing’ carbon, and not to infer that the beer was a juice drink for children. The company explained that the graphic novel style and inclusion of characters was chosen to simplify the intended message for consumers. The company explained that any association with juice drinks was accidental, and it did not design the label with the intention of having it appeal to children; though it accepted this could have unintentionally been the case.
The company explained that only 1900 SKUs had been made, with the large majority being used by Catch UK at industry events attended by those aged 18 and over. Furthermore, the remaining stock was sold exclusively in the company’s taproom shop and the drink was not sold in wider retailers. The company explained that the beer was limited edition and would soon cease to exist once the final products had been sold.
The Panel’s assessment
Code rule 3.1
The Panel considered whether the packaging of Carbon Crush communicated its alcoholic nature with absolute clarity as raised by the complainant. The Panel carefully assessed the label and noted it was a fairly busy design in the style of a comic book strip. The Panel considered that the word ‘crush’ was prominently displayed on the front of the label and that ‘crush’ could be used to describe a non-alcoholic soft drink. However, the Panel also noted that the front label included the descriptor ‘low carbon IPA’ as well as the product’s alcoholic strength by volume (ABV) of 5%. The Panel assessed the back label and noted several positive alcohol cues such as the product’s unit content, a pregnancy warning logo and references to beer, brewing and hops.
After careful consideration of the overall impression conveyed by the packaging, the Panel stated that while the label was busy in design, there were sufficient positive alcohol cues to communicate the drink’s alcoholic nature with absolute clarity. Accordingly, the complaint was not upheld under Code rule 3.1.
Code rule 3.2(h)
The Panel then assessed whether the packaging could have a particular appeal to under-18s as raised by the complainant. The Panel noted that the predominant theme of the label was a comic book strip style story featuring a caped crusader battling carbon emissions which were represented as fantastical creatures. The Panel considered that the style of the imagery was reminiscent of retro-comic strips which could have a nostalgic appeal to adults. However, the Panel also considered that while there might be a nostalgic appeal to adults, comic books, particularly those which featured a caped crusader character, were still popular amongst contemporary children. The Panel therefore stated that while comic books could have broad appeal across all age groups, in some contexts, they could have particular appeal to under-18s. The Panel discussed a previous precedent regarding ‘No Capes’ which included superheroes as the dominant theme, which was found to have a particular appeal to under-18s.
The Panel analysed the overall impression of the can and noted that while the colour of the packaging was muted, it did include contrasting bright colours including yellow, green and blue which could have appeal to children. Furthermore, the Panel considered that the can featured a fantastical story of a superhero figure, battling and capturing ghoulish type creatures with speech text highlighted in colourful spikey speech balloons. The Panel stated that the inclusion of these elements were similar to superhero comics which were aimed at children and collectively enhanced the level of appeal to children.
Therefore, the Panel concluded that the combination of imagery, fantastical narrative, contrasting primary colours and inclusion of a caped crusader meant that the packaging was likely to have a particular appeal to under-18s. Accordingly, the complaint was upheld under Code rule 3.2(h).
The Panel noted that the product’s particular appeal to under-18s was unintentional and had been intended as a limited-edition product designed to spread awareness of Carbon Capture and Storage. The Panel welcomed the company’s response that the product was no longer in production in its current form.
Action by Company:
Product no longer in production.
Producer:
AU Vodka
Complaint:
“I believe that the above pictures suggest an association with bravado, violent, dangerous, anti-social and illegal behaviour. The inclusion of a gun with ‘money’ and a ‘gangster pose’ could only imply the use of this to obtain that money and hence suggest the above behaviours.”
Complainant:
The Wine and Spirit Trade Association (WSTA)
Decision:
Under Code paragraph 3.2(b)
A drink, its packaging or 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
Under Code paragraph 3.3
A drinks name, its packaging and any promotional material or activity should not cause serious or widespread offence.
NOT UPHELD
The company’s submission
The company stated that it took complaints about its marketing seriously and recognised the importance of complying with UK marketing rules for the alcohol industry. The company explained that it had worked closely with the Advertising Standards Authority to ensure its marketing was at the required standard and that it understood the significance in protecting consumers from irresponsible alcohol promotions that could contribute to a risk of harm.
The company explained that the AU Vodka Gold Gang Money Gun was primarily used in the on-trade at nightclubs and in other party environments as a fun novelty piece and did not agree that consumers would need to ‘use’ the gun to ‘obtain’ money. The company explained that there was no association between the AU Vodka Gold Gang Money Gun and bravado, violent, dangerous, anti-social or illegal behaviour, nor was this depicted in images used in its wider marketing. Responding to two images that had been provided by the complainant of a man posing with the AU Vodka Gold Gang Money Gun on a plane, the company disagreed that either image was stylised in a ‘gangster pose’ or why the images would have been classified as such.
The company reiterated that the AU Vodka Gold Gang Money Gun was widely popular across the world in nightclub environments and was therefore unlikely to cause serious or widespread offence. However, in the interest of ensuring consumer safety, the AU Vodka Gold Gang Money Gun had been renamed the ‘money sprayer’ and the company explained that it would be willing to remove images used in its wider marketing material if required.
In response to the Panel’s provisional decision, the company reiterated that the ‘money gun’ was a novelty toy item designed to be used in the on-trade, in environments such as nightclubs or at parties. The company stated while some elements such as the trigger and handle may resemble a firearm, not all gun-related objects inherently promoted violent, aggressive, or dangerous behaviour. The company noted that the money gun had gained widespread popularity which suggested consumers perceived it as harmless and inoffensive. The company explained that this perception supported the view that the money gun did not create any association with violent or aggressive behaviour.
The company explained the primary purpose of the ‘money gun’ was as a harmless prop to entertain consumers. The primary use of the gun was to shoot fake money to amuse and did not encourage consumers to obtain money through illegal means.
The company disagreed that the wider marketing images which included a model posing with the money gun, created an association with violent behaviour. The company explained that the pose adopted by the model was not intended to depict any type of violent behaviour. Instead, it aligned with elements found in popular UK music culture and aimed to convey a sense of style and confidence.
Finally, the company explained that the ‘Money gun’ had been rebranded as a ‘money sprayer’ and any wider marketing materials which could convey unintentional associations with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour had been removed.
The Panel’s Assessment
Code Rule 3.2(b)
The Panel discussed the shape and design of the AU Vodka Gold Gang Money Gun and whether it created any association with bravado, violent, aggressive, dangerous, anti-social or illegal behaviour. The Panel considered that the large square shape of the top of the gun did have similarities with a pricing or speed gun and noted that not all ‘guns’ were intrinsically linked to firearms. However, the Panel noted that in this instance the handle and trigger mechanism were consistent with the design of a firearm. The Panel also discussed that the shape of the gun appeared to be based on a firearm weapon, including how the gun would be held by a consumer and that it ‘fired’ money from where bullets would typically be fired. The Panel noted these elements were fundamentally different to both a speed and pricing gun which would not shoot a projectile.
When considering the wider marketing, the Panel noted that the gun was used in promotional imagery where it was held by a man on a plane in two photos. The Panel discussed that in both photos, the AU Vodka Gold Gang Money Gun was held in a similar fashion to how one would hold a firearm; pointing at the camera clasped with two hands and held up by the side of the head as if it were a handgun. The Panel discussed that the two photos emulated certain elements of popular music culture which sometimes had associations with violence, and in this case, the handling of the money gun was akin to brandishing a weapon invoking a sense of bravado and creating an association with violent behaviour.
Taking the above into consideration, the Panel discussed the wording of Code rule 3.2(b) and noted it stated that a drinks promotional activity should not create any association with bravado, violent or aggressive behaviour.
The Panel then discussed the company’s response to the provisional decision and noted that the AU Vodka Gold Gang Money Gun was intended to be a novelty item which the company had rebranded as a ‘money sprayer’. However, the Panel considered that changing the name of the merchandise did not address the inherent concern with the design or the link it created to a real-life firearm. The Panel acknowledged that not all ‘gun’ shaped objects were fundamentally linked to firearms, however in this case, the overall impression conveyed by the shape of the gun handle, the trigger and the mimicking of shooting a projectile, all created an indirect association with violent and aggressive behaviour because of the inherent similarities between the design of the money gun and a real-life firearm. Furthermore, the Panel stated that any association between a firearm and an alcoholic drink was wholly inappropriate. Accordingly, the Panel upheld the complaint under Code rule 3.2(b).
Code Rule 3.3
The Panel then considered whether the AU Vodka Gold Gang Money Gun could cause serious or widespread offence. The Panel noted that the AU Vodka Gold Gang Money Gun was fairly fantastical in its design and function to spray money, and that it did not explicitly reference gun crime or criminal activity which may cause serious and widespread offence. After careful discussion, the Panel noted that while the design and function of the AU Vodka Gold Gang Money Gun created an indirect association with dangerous and violent behaviour, most consumers would recognise that the merchandise was a novelty item designed to spray money. The Panel concluded that this distinction meant that the branded merchandise was unlikely to cause serious or widespread offence in the same way a more direct association with a firearm could. Accordingly, the Panel did not uphold the complaint under Code rule 3.3.
Action by Company:
Merchandise has been discontinued.
Producer:
Promotional Warehouse for the Scottish National Party
Complaint:
‘I do not believe that the labelling of this product makes it clear that this is an alcoholic beverage. This is due to the size of text for the alcohol content and nominal volume along with the fact that these pieces of information are upside down, together with the white text on clear background as well as the use of bright colours. 1. Consumers do not know, at first glance, that this is an alcoholic product. 2. The use of bright colours with the legibility issues above may mean that this product is appealing to under 18’s.’
Complainant:
The Wine and Spirit Trade Association
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 and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s.
NOT UPHELD
The company’s submission
The company stated that YES Gin was commissioned and created by a small independent distiller who created the drink at the company’s request, and that it was sold through Scottish National Party (SNP) channels only.
The company explained that it had an exclusive merchandising license agreement with the SNP and sold a variety of promotional products, predominantly conventional and eco clothing. The gin was a small part of the multiple items it retailed and only a small number of SKUs had been sold.
The company explained that the Wine and Spirit Trade Association had been in contact directly to raise concerns that the label was in potential breach of EU regulations and the Portman Group Code of Practice. The company explained that it had therefore changed the label to rectify these concerns. The company apologised for the potential breach of the Code and any relevant legislation, which was not intentional.
The Panel’s assessment
Code rule 3.1
The Panel welcomed the information that the company had chosen to make changes to the packaging of YES Gin to improve the communication of the drink’s alcoholic nature. However, the Panel clarified that as the case had been deemed unsuitable for Informal Resolution, it still had to consider the label which was the subject of complaint as the complainant had also raised a concern under Code rule 3.2(h) which had not been addressed in the proposed change. Therefore, the Panel assessed the packaging and considered whether the original label subject to complaint, communicated the drink’s alcoholic nature with absolute clarity.
The Panel noted that the label was fairly simple and not overly busy in design. The Panel noted that some mandatory information, such as the alcohol by volume (ABV) of 40%, was placed upside down in a small box on the front label in small text. The Panel acknowledged the complainant’s concern that a significant amount of text on pack was white on a clear background and could affect the legibility of the information presented.
The Panel discussed the wording of Code rule 3.1 and noted that as part of this, producers were expected to demonstrate compliance with EU Regulation 1169/2011 on the provision of food information to consumers. The Panel also considered that compliance with the law was the responsibility of the producer and that the Code sat alongside the law. The Panel noted that in this particular instance, the product’s ABV text, which had been placed upside down on the front label in very small white text, was smaller than the minimum font size required by labelling legislation and that it was difficult to read. The Panel then considered the wording of Code rule 3.1 as a broad principle rule and agreed that compliance with the rule, specifically to determine whether a product communicated it’s alcoholic nature with absolute clarity, was not a clear cut matter of being able to identify a product as alcoholic ‘at first glance’ as raised by the complainant. Instead, the Panel noted that guidance under Code rule 3.1 stipulated that a product should always be considered in its entirety and assessed as an average consumer would, by picking the product up and considering it from all angles.
The Panel therefore considered the packaging in its entirety and noted that it did contain a number of positive alcoholic cues such as the word ‘Gin’ which appeared five times in legible text, the shape of the bottle, information about the distiller and relevant alcohol health-related information such as the Chief Medical Officers’ Low Risk Drinking Guidelines, the product’s unit content and a pregnancy warning.
After careful consideration of the label as a whole, the Panel stated that while some elements could be presented more clearly, on balance, there was sufficient legible information to establish the drink’s alcoholic nature. The Panel discussed the application of Code rule 3.1 and stated that decisions under the rule should be practical and proportionate and that while the drink’s ABV presentation was unlikely to comply with relevant labelling legislation regarding one element, for the purposes of the Code, there was additional clear, sufficient information to determine that the product was alcoholic. The Panel noted there was nothing else on the product’s packaging which could cause consumer confusion as to the alcoholic nature of the product, such as predominant fruit imagery, a soft drink descriptor or novel packaging. Therefore, the Panel concluded that the packaging did communicate the drink’s alcoholic nature with absolute clarity and accordingly did not uphold the complaint under Code rule 3.1.
Code rule 3.2(h)
The Panel discussed whether the product could have a particular appeal to under-18s as raised by the complainant. The Panel assessed the packaging and noted that the word ‘YES’ was displayed on the front and back of the packaging in block capitals which were brightly coloured in purple, yellow, green and red. The Panel discussed that while bright colours could contribute to a label appealing to children, the use of bright colours alone would not constitute a particular appeal to under-18s as colours had ubiquitous appeal. The Panel then assessed the rest of the packaging to determine whether there was anything else which could have a particular appeal to under-18s. The Panel noted that the bottle shape was typical for a Gin, and the rest of the label was simple in design and did not include elements such as cartoon imagery, thick bold lines or sweet flavours which could appeal to children.
When considering the overall impression conveyed by the packaging, the Panel concluded that the packaging did not have a particular appeal to under-18s and did not uphold the complaint under Code rule 3.2(h).
Action by Company:
None required.
Producer:
Bartex Bartol
Complaint:
Breach of guidelines, namely that drinks “should not suggest any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.2(b)
A drink it’s 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
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 did not submit a response to the complaint.
The Panel’s Assessment
Code Rule 3.2(b)
The Panel discussed whether the packaging of Cosa Nostra Scotch Whisky suggested any association with violent, aggressive, dangerous, anti-social or illegal behaviour. The Panel reviewed the shape of the bottle as the product’s primary packaging and observed that it was a replica of a Thompson submachine gun, known as a ‘Tommy Gun’, which the Panel determined created a direct link between the drink and a dangerous weapon. The Panel considered that a Tommy Gun was often used in depictions of historical organised crime syndicates, and while a Tommy Gun was not a contemporary gun, the average consumer would recognise it as a firearm. Therefore, the Panel considered that the shape of the bottle created a clear link between the drink and a dangerous weapon which was wholly inappropriate for an alcoholic drink.
The Panel then discussed the drink’s name, Cosa Nostra, and noted that the ‘Cosa Nostra’ were a well-known faction of the Italian Mafia, an organised crime group renowned for engaging in violent behaviour and illegal activities. The Panel noted that text included on the packaging stated ‘post proelia praemia’ which translated in English to ‘after the battle, comes the reward’, further compounding the association between the drink, violent behaviour and the glamorisation of criminal activity.
The Panel noted that the gun-shaped product came packaged in a large box which included the product name, an image of the primary packaging inside, imagery of two Tommy Guns crossed over each other and images of bullet holes on the box. The Panel noted that this further emphasised the product’s direct link to violent behaviour and the glamourisation of criminal activity.
Considering the overall impression of the primary and secondary packaging, the Panel concluded that the name, the gun shape packaging and the language used all created a direct association with violent, aggressive, dangerous and illegal behaviour which glamourised crime and mafioso culture. Accordingly, the Panel upheld the complaint under Code rule 3.2(b).
Code Rule 3.3
In light of the above, the Panel considered whether the drinks packaging could cause serious or widespread offence. The Panel discussed the association created between the drink and Cosa Nostra, a real-life criminal organisation. The Panel discussed that the average consumer would be aware of the Cosa Nostra given it was still a contemporary group, and one which was intrinsically linked with extreme violence, aggression, and criminal activity. The Panel stated that those who were directly affected by the violence perpetrated by the syndicate would consider packaging glamourising the Cosa Nostra seriously offensive.
The Panel also considered that the packaging created a clear link between an alcohol drink and a firearm. In the context of rising gun crime in the UK, the Panel considered that the packaging was also likely to cause serious and widespread offence, particularly to communities in which gun crime was an ongoing serious issue. Accordingly, the complaint was upheld under Code rule 3.3.