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.

Retailer Alert Bulletin

Producer:

AU Vodka

Complaint

“After looking up G. O. A. T. in relation to alcohol on google I found two options: The first related to a treatment for alcohol use disorder Manipulating Ghrelin Signaling Via GOAT Inhibition in Alcohol Use Disorder – Full Text View – ClinicalTrials.gov. This was the search GOAT in alcohol text – Search (bing.com) The second g. o. a. t. meaning – Search (bing.com) stated that this stood for the ‘greatest of all time’. Like me, not everyone will understand that GOAT stands for and so may reasonably believe that this is linked to a treatment for alcohol use disorder. I am also going to refer this on to the MHRA and ASA.”

Complainant:

The Wine and Spirit Trade Association (WSTA)

Decision:

Under Code paragraph 3.2(j)

3.2(j) A drink, its packaging or promotion should not 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 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 understood the significance in protecting consumers from irresponsible alcohol promotions that could contribute to a risk of harm.

The company explained that Au Vodka GOAT was a personalised product which was promoted online as an exclusive for a limited time period. The company asserted that consumers would be familiar with such personalised versions of its products which also included ‘Au Vodka Happy Birthday’ and ‘Au Vodka Congratulations’.

The company explained that the online marketing for Au GOAT contained very clear reference in the product description as to the intended meaning of GOAT, including ‘let someone know they are the G.O.A.T’ and ‘a custom Au Vodka GOAT’ message bottle. The company stated that the Cambridge Dictionary, Macmillin Dictionary and Urban Dictionary all listed that ‘GOAT’ could be understood to mean the ‘Greatest Of All Time’, and that this definition was well known by consumers.

The company stated that nothing in the drinks marketing or packaging suggested that the product had therapeutic qualities or could enhance mental or physical capabilities or change mood or behaviour. Finally, the company did not believe that consumers would reasonably associate the drink with treatment for alcohol use disorder based on consumer understanding of the term and the product’s marketing which made its usage clear.

The Panel’s Assessment

The Panel discussed whether the packaging of Au Vodka GOAT suggested the drink had therapeutic qualities and was linked to treatment for alcohol use disorder. The Panel considered how the average consumer would likely interpret the name ‘GOAT’. The Panel noted that ‘GOAT’ was commonly used to refer to a person as the ‘Greatest Of All Time’ and that most consumers would be familiar with this definition, as was also reflected in the Cambridge Dictionary, Macmillan Dictionary and Urban Dictionary definitions. The Panel discussed the terminology raised by the complainant and considered that the average consumer was unlikely to be familiar with the term as a form of treatment for alcohol use disorder. The Panel also noted that there was nothing on the packaging or accompanying marketing which suggested that the drink could be used as part of a treatment for alcohol use disorder. The Panel then discussed whether the drinks name, packaging or wider marketing materials suggested the drink had therapeutic qualities, or could enhance physical or mental capabilities, to help a consumer become the ‘Greatest Of All Time’. The Panel reviewed the product descriptor text on the company’s website and noted that it included the messaging ‘let someone know they are the G.O.A.T’. The Panel considered that a consumer would understand the line to mean gifting the drink to someone who they considered the ‘Greatest Of All Time’, rather than a suggestion that the drink could help the individual become the ‘Greatest Of All Time’.

The Panel noted that only an image of the front of the bottle was provided as part of the complaint and as a limited-edition product that had sold out, it did not have access to the physical product. In this particular instance, the Panel was satisfied that as the complaint pertained to the product name, and the product descriptor text had been shared to demonstrate how the product was marketed, the Panel had the necessary information to reach a decision. However, the Panel emphasised that if any new evidence came to light regarding the back label of the product that suggested that consumption could aid a consumer in becoming the ‘Greatest Of All Time’, the name could be found in breach of the Code.
On the basis of the available evidence, the Panel concluded that the name did not suggest the drink had a therapeutic quality, could enhance mental or physical capabilities, or change mood and behaviour. Accordingly, the complaint was not upheld under 3.2(j).

Action by Company:

No action required.

Producer:

AU Vodka

Complaint:

“AU Vodka Bubblegum – I believe that the use of pastel blue and pink colours and
bubble writing on AU Vodkas bubble gum bottle is appealing to under 18’s – Au Vodka
Bubblegum
– These colours are associated with candy sweets and products marketed at minors.
– The use of bubble writing is childlike and not, generally, associated with adults and
adult products.
– Although ‘vodka’ is included on the bottle, along with the abv, the information is
embossed which means that it is not clear at first glance that this is an alcoholic
beverage. The embossing does not offer enough of a contrast between the bottle and
text.

The marketing text for AU Vodkas Bubblegum, pineapple crush, watermelon, blue
raspberry and double espresso liqueur include the marketing text: ‘Gold symbolising
power and perfection’. I believe that this implies success and/or popularity for those
that are seen with this product.”

Complainant:

The Wine and Spirit Trade Association (WSTA)

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 or promotion should not suggest that consumption of the drink
can lead to social success or popularity.

NOT UPHELD

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

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 bottle of AU Vodka Bubblegum referenced its
alcoholic nature 12 times, which included:

• The alcohol by volume (ABV) presented on the front and back of the label;
• The front label included the large stylised corporate logo with ‘vodka’ being
  capitalised as well as reference to the drink being a ‘spirit’;
• The back label stated that the drink was distilled;
• The back label contained alcohol-related health information such as:
  o The UK Chief Medical Officers’ low risk drinking guidelines;
  o Pregnancy warning logo;
  o The number of alcohol units per bottle; and
  o HMRC’s alcohol duty stamp.

The company explained that the drinks container was a tall glass bottle which was
typical for a spirit product. The company stated it did not agree that some of the
positive alcohol cues being embossed on the bottle meant that the alcoholic nature of
the drink was unclear. The company explained that while there were some cues which
were embossed, there was sufficient contrast to ensure the information, and
packaging, was clearly identifiable as an alcoholic drink. The company also noted that
an embossed packaging design was not unusual for spirit drinks in the UK.
The company summarised that the multiple positive alcohol cues on the packaging,
which was not overly ‘busy’ in design, meant that the average consumer could identify
the drinks alcoholic nature in any environment with absolute clarity.

The company disagreed that the packaging suggested that consumption of the vodka
could lead to social success or popularity. The company explained that while the back
label did include the text ‘Gold symbolising power and perfection’ the complainant had
omitted the rest of the sentence which in full read as ‘Gold symbolising power and
perfection, represents the exceptional taste of our AU Bubblegum’. The company
explained that the words ‘power’ and ‘perfection’ were intended to reference the quality
and taste of the drink, as explained in the latter half of the sentence. The company
stated that ‘gold’ was a reference to the chemical element ‘Au’ which the brand was
named after and reflective of the distinctive gold colour of the bottle. The company
also explained that the line was not featured prominently or presented as a strong
theme on the packaging. The company stated that whether the line was considered in
isolation, or as part of the overall impression of the packaging, neither implied
consumption of the drink could lead to social success or popularity.

The company stated that it did not believe the packaging had a particular appeal to
under-18s. The company highlighted that the bubble writing text, and use of pink and
blue colours, should be considered as part of the overall impression of the product,
rather than in isolation. The company explained that it purposely avoided the use of
any child-like cartoon imagery or writing on the packaging. The company stated that it
had instead introduced a sweet flavour to a premium product range which was
specifically targeted at an adult market and that the colours used were commonly
associated with the bubblegum flavour, as opposed to being particularly appealing to
under-18s. Furthermore, the company highlighted that it had included extensive
positive alcohol cues so the alcoholic nature of the drink was communicated with
absolute clarity. The company added that even if the shape of the bottle was not
considered traditional, it was clearly alcoholic and thus unlikely to be appealing to
under-18s.

The company explained that the recommended retail price of the product was £34.99
to reflect the premium nature of the drink, and to ensure it did not appeal to under-18s
but rather the target audience of 25-35 year olds. The company also explained that
the purchase page for the vodka on its website included the text ‘must be of legal
drinking age to purchase’.

The company rejected that the packaging could have a particular appeal to under-18s
in any environment and stated that the product packaging had sufficient positive cues
which reinforced the fact the product was aimed at an adult audience.

The Panel’s Assessment

Code Rule 3.1

The Panel first examined the packaging and noted there were several positive alcohol
cues on the front and back label. The Panel noted that the front of the bottle stated
‘Vodka’ on the top label and was also embossed on the body of the bottle along with
‘flavoured spirit drink’ and the product’s alcoholic strength by volume (ABV).
Additionally, the Panel noted that the back label included further reference to the word
‘Vodka’, as well as responsible drinking messaging, the product’s ABV, a pregnancy
warning, Drinkaware signposting and the unit content per container and serve.
Considering the overall impression of the packaging, the Panel concluded that there
was nothing else on the label that detracted from the numerous positive alcohol cues
and that the drinks alcoholic nature was communicated with absolute clarity.
Accordingly, the Panel did not uphold the complaint under Code rule 3.1.

Code Rule 3.2(e)

The Panel considered whether there was anything on the product’s packaging that
suggested that consumption of the drink could lead to social success or popularity as
raised by the complainant. The Panel noted that the back label included the line ‘Gold,
symbolising power and perfection, represents the exceptional taste of our AU
Bubblegum’. The Panel considered the line and stated that it was clear that it referred
to the taste and quality of the product as highlighted within the sentence. The Panel
considered that while the brand was positioned as a premium product, and the
accompanying marketing for the product depicted a lifestyle which consumers may
find aspirational, there was nothing on the product packaging which suggested that
consumption of the drink could help a consumer lead such a lifestyle or become
popular. After reviewing the packaging in its entirety, the Panel concluded that there
was nothing on the packaging which suggested that consumption of the product could
lead to social success or popularity. Accordingly, the Panel did not uphold the
complaint under Code rule 3.2(e).

Code Rule 3.2(h)

The Panel carefully considered the packaging and discussed whether it had a
particular appeal to under-18s. The Panel discussed a similar case precedent
regarding Cactus Jack’s Schnapps (Black Jack and Fruit Salad), which, while named
and flavoured after confectionary items, were found not to have a particular appeal to
under-18s. As part of this case, the Panel had ruled that whilst the confectionary
names might have some appeal to under-18s, this alone was not strong enough to
constitute particular appeal and that the product’s overall impression would ultimately
determine compliance under the Code.

With regard to AU Bubblegum, the Panel first discussed the bubblegum flavour of the
drink and whether it could appeal to children or teenagers. The Panel considered that
as a confectionery item, ‘bubblegum’ was popular with under-18s, however, the Panel
also noted that ‘bubblegum’ was a well-known product flavour and used in a variety of
products for all ages. In line with previous Panel decisions, the Panel agreed that
bubblegum in and of itself as a flavour did not have a particular appeal to under-18s
and that the product’s overall impression needed to be considered in the context of a
flavour that had a level of appeal to those under the age of 18.

When considering the presentation of the drinks name, the Panel noted that
‘Bubblegum’ was illustrated with a pink and blue bubble font style and employed thick
bold lines around the edge of the font. The Panel noted that the blue and pink colours
also appeared on the neck of the bottle but acknowledged that these were used to
represent the product’s flavour. The Panel considered that while these elements could
have an appeal to under-18s, it was important to consider these points in the wider
context of the overall impression of the product packaging.

When considering the overall impression of the drinks packaging, the Panel stated the
name appeared on a fairly plain bottle, which was bright gold and did not include any
other elements, such as cartoon imagery or images of confectionary items, which
could have particular appeal to under-18s. The Panel also noted that the product, and
its wider range, were presented as a premium, aspirational, adult brand and that the
product did not appear overly childish with its minimalistic design. The Panel
considered that the presentation of the name, and its reference to a confectionary item,
was close to the line of acceptability under the Code but that these elements had been
used to communicate the product’s flavour which did not have a particular appeal to
under-18s alone. Therefore, based on the overall impression conveyed by the
product’s packaging, which included the premium, adult look and feel of the product,
the Panel concluded that the design elements used to convey the product’s flavour
were not strong enough to constitute a particular appeal to under-18s. Accordingly,
the Panel did not uphold the complaint under Code rule 3.2(h).

Action by Company:

None required.

Producer:

Phusion Projects

Complaint:

 ‘LOKO suggests mental health issues which are at the forefront of government initiatives in the current climate. We cannot denigrate mental capabilities……Given the rise in, as yet, unregulated social media leading to numerous examples of impressionable adults committing self harm, up to actual suicide, the issue is regarded with higher importance than 8 years ago, at the time of the last complaint. Social media usage has catapulted; in 2014, TikTok didn’t even exist. Launched in late 2017 it had 1.8% share of U.K. smartphone users. Latest figures (2 years later in December 2019) had seen it almost quintuple to 8.7% usage. Words and phrases in common usage in the 80’s and 90’s are now seen as abhorrent in today’s societal cultures……Words such as “Loko” and the phrases coming from that are already raising concerns with those health professionals dealing with an ever increasing burden on the nations mental health, now seen as relevant a disease as is cancer and heart problems’

Complainant:

Mr David Kent on behalf of Corinthian (CBL) Brands Ltd

Decision:

Under Code paragraph 3.3

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

NOT UPHELD

The company’s submission

The company stated that it took its responsibility as an alcohol producer seriously and that the marketing of Four Loko did not encourage irresponsible consumption or contravene the Portman Group Code in any other aspect. The company explained that it had sought a view from the Portman Group Advisory Service in 2015, and in 2021 prior to the relaunch of the Four Loko brand in the UK.

The company acknowledged that all complaints would be treated in accordance with due process by the Independent Complaints Panel (Panel) but highlighted that the complaint was submitted by a competitor rather than a consumer.

Addressing the complaint, the company stated it did not believe that Four Loko could cause serious or widespread offence, and this was the first complaint it had received in that regard. The company explained that ‘loco’ in Spanish could be directly translated to mean ‘crazy’, however the reference in the name ‘Four Loko’ was to the product itself. In particular, the original ingredients used and the original four flavour combinations in which the drinks were available.

The company explained that the capacity for a word or phrase to cause serious or widespread offence would be dependent on the context in which it was used. While ‘crazy’ or ‘loco’ could be deemed offensive if directed at an individual or group, ‘crazy’ could also be used in common parlance to describe the ‘zaniness’ of an object or situation. The company cited the September 2016 study by Ofcom and Ipsos Mori into ‘Attitudes to potentially offensive language and gestures on TV and Radio’[1], which listed 17 words considered to be potentially offensive or derogatory in the context of physical or mental health. The study was updated in September 2021[2], to include 23 words, however ‘loco’ or ‘crazy’ did not appear in the 2016 or 2021 study respectively. The company noted that the report also highlighted the importance of context in which a word is used to determine whether it would cause offence.

The company referred to the precedent set by the Panel in the Original Nuttah case, which considered the context of how the word was used. The company noted that the Panel stated that the word ‘nutter’ was a derogatory term to those who suffered from mental illness. The company explained that ‘nutter’ was generally only used to refer to an individual, rather than to describe an experience or inanimate object in the way that loco or crazy were used, such as ‘crazy golf’.

Furthermore, the company stated it believed the packaging of the drinks was compliant with the wider Code. The company reiterated it had worked with the Portman Group’s Advisory Service in 2015 and in 2021. Subsequently, multiple changes were made to the content of product, packaging and the brand such as the inclusion of responsible drinking messages, and the removal of anything in the marketing which could be misinterpreted as encouragement to drink irresponsibly. The changes included:

• Reduction in the alcohol content and packaging size to ensure the number of units per single serve packaging was 3.74 units;
• The recommended price point for Four Loko was chosen to position the brand as a premium product to appeal to consumers aged 18-30 with disposable income;
• The packaging was amended to highlight it was an 18+ product, should not be consumed while pregnant and should not be consumed before driving. The packaging also included responsible drinking messages to convey that consumers should not drink more than 14 units of alcohol per week, and sign posting to the Drinkaware website;
• The packaging clearly communicated the drink’s alcoholic nature without overemphasis of the alcoholic content;
• The word ‘loko’ did not appear in isolation in UK marketing materials but instead the full brand name was always used: ‘Four Loko’. UK branding and marketing also avoided any associations with ‘crazy’, ‘madness’ or ‘off your head’ themes which could be misinterpreted as encouraging immoderate consumption.

Finally, the company explained that for nearly 10 years, Four Loko drinks have not contained caffeine, taurine or guarana.

The Panel’s assessment

The Panel agreed to discuss Four Loko Blue, Four Loko Fruit Punch, Four Loko Gold and Four Loko Sour Apple concurrently as the complaint primarily regarded the brand name and all were similar in design. The Panel noted that four, Four Loko products had previously been considered in 2014 under the Fifth Edition of the Code. At the time, the products had been found in breach of Code rule 3.2(f) but not in breach of Code rules 3.2(b) and 3.2(j). In the absence of any new evidence that would change the 2014 precedent, the Panel did not reconsider the products under the Code rules that had previously been reviewed in 2014.  As Code rule 3.3 was not part of the Fifth Edition of the Code in 2014 it was agreed this was a new element for the Panel to consider in this case.

The Panel noted that ‘loko’ was phonetically similar to ‘loco’ in Spanish which translated to ‘crazy’ in English. The Panel considered that ‘loco’ would not necessarily be understood by all consumers to mean ‘crazy’, although some would be familiar with the phrase.

The Panel discussed accompanying guidance to rule 3.3 and noted that whilst complaints would be considered on a case-by-case basis, the rule was designed to prohibit marketing that was discriminatory, derogatory and demeaning. The Panel considered this alongside the 2021 study by Ofcom and Ipsos Mori entitled ‘Attitudes to potentially offensive language and gestures on TV and Radio’[3] and noted that ‘loco’ and ‘crazy’ did not appear as words which were likely to cause offence.

The Panel discussed Original Nuttah a case precedent cited by the producer in its response to the complaint,. The Panel noted in that particular context, the word ‘nutter’ was found to be a derogatory term targeted at a group, namely those with mental health issues and the complaint was subsequently upheld.

The Panel considered the word ‘crazy’ and noted that it had multiple connotations depending on whether it was applied to an experience or directly to an individual. The Panel noted that ‘loco’ or ‘crazy’ could be used positively to describe an experience, object or situation. Conversely, it could also be used as a negative term in reference to an individual or group. The Panel also noted that the Ofcom report highlighted the importance of context in which a word was used to determine whether it was offensive and considered that context would therefore be paramount in determining whether the packaging of Four Loko was likely to cause serious or widespread offence.

The Panel discussed the packaging and the context in which ‘Four Loko’ appeared. The Panel noted the cans had a muted design and included factual text, none of which referenced mental health or alluded to ‘crazy or ‘loco’ behaviour. The Panel noted the company’s point that the name was always presented as ‘Four Loko’ in UK marketing, and that ‘loko’ was not used on the drink’s label, or in wider marketing materials, in isolation. The Panel also noted that the name ‘Four Loko’ was derived from the four ingredients and flavours of the drinks and only used in this context. When considering the overall impression of the packaging, the Panel determined there were no elements which were demeaning, derogatory or discriminatory, and that there was no evidence to suggest that ‘loko’ was used to target or refer to those who suffered from mental health issues in a derogatory manner.

On this basis, the Panel concluded that Four Loko did not cause serious or widespread offence. Accordingly, the complaint was not upheld under Code rule 3.3.

Action by Company:

None required.

References

[1] Attitudes to potentially offensive language and gestures on TV and Radio, Ofcom and Ipsos Mori, September 2016 https://www.ofcom.org.uk/__data/assets/pdf_file/0022/91624/OfcomOffensiveLanguage.pdf

[2] Attitudes to potentially offensive language and gestures on TV and Radio, Ofcom and Ipsos Mori, September 2021 https://www.ofcom.org.uk/__data/assets/pdf_file/0021/225336/offensive-language-summary-report.pdf

[3] Attitudes to potentially offensive language and gestures on TV and Radio, Ofcom and Ipsos Mori, September 2021 https://www.ofcom.org.uk/__data/assets/pdf_file/0021/225336/offensive-language-summary-report.pdf

Producer:

Engine S.r.l

UK Distributor:

Disaronno International UK Ltd

Complaint:

“I have stumbled across “Engine” gin on my recent Tesco shop and I am shocked and appalled about its design and open link to driving. The oil can design plus using phrases like “fuel the dream” are highly inappropriate and not something the alcohol industry should be doing.

The packaging is designed to replicate an oil can and not an alcoholic drink. The website and online material only continues this message and is pushing a fuel for car performance rather than an alcoholic brand. The engine logo on the front of the can also reflects a car performance drink rather than a gin. The picture below taken from their website clearly links the brand to driving and a petrol station.

https://www.engine.land/engine

I alongside thousands others have been directly impacted by drink driving incidents and to see this brand lean into it and openly encourage links to driving throughout the brand is disgusting. I believe this brand to be linking itself to driving and therefore a link to drink driving, the use of an oil can and car imagery is not something that a brand should be able to do as well as being very irresponsible.

The packaging is also very gimmicky and looks to be targeting a younger market and looks more like a toy than an alcoholic brand I have included the links to the store and engine webpage below
https://www.engine.land/en
https://www.tesco.com/groceries/en-GB/products/312107294

The use of bright colours and a can do not reflect an alcoholic drink and more reflects a child’s drink. The language used about fuelling the dream is also something that would encourage under age drinkers to purchase this brand. The tag line of “fuel the dream” encourages a younger audience to try the brand in a similar way that red bull is consumed. Using words like pure organic gin also sounds like it has health benefits to consumption.

The use of the language of fuelling the dream is not something that an alcoholic brand should be able to use. It hints at the liquid helping you be a better person. Engine is also heavily linked to the motoring industry and a heavy link to drink driving.”

Complainant:

Member of the public

Decision:

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

NOT UPHELD

Under Code paragraph 3.2(e)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that consumption of the drink can lead to social success or popularity.

NOT UPHELD

Under Code paragraph 3.2(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 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

Engine S.r.l (the manufacturer of Engine Organic Gin) and Disaronno International UK Ltd (the UK distributor) submitted a joint response to the complaint and stated from the outset that while it took all complaints seriously it did not agree with the basis of the complaint.

The company explained that Engine Organic Gin was created by the company’s founder and was distilled using organic ingredients which paid tribute to traditional Italian rosolios famous in the Piedmont region of north-west Italy. The design celebrated the imagery of oil and fuel cars, evoking nostalgia for the 1970’s, using a deep red colour to pay homage to classic cars of that era.

The company stated that Engine Organic Gin was launched in the UK in 2021 and was both critically and commercially successful. The company explained that Engine Organic Gin was distributed across multiple territories worldwide and that it had received no complaints since its launch. Furthermore, Engine Organic Gin had been widely praised by consumers and experts, winning numerous awards for the products quality and packaging design.

The company reiterated that it had not received any indication or complaint from either industry stakeholders or consumers that the packaging did not make clear the alcoholic nature of the product; encouraged drink driving, appealed to young people, or suggested that the product had therapeutic qualities.

Addressing the complaint under Code rule 3.1, the company stated that the alcoholic nature of Engine Organic Gin had been communicated with absolute clarity. The company explained that online retailers listed the product as Engine Organic Gin 700Ml, and in retail stores it was placed in the alcoholic drinks section. The company further explained that it had complied with the Portman Group’s guidance on Code rule 3.1 on the drinks label. The word ‘Gin’ appeared prominently, in the design’s largest letters on the front of the packaging and the word ‘Engine’ was stylised with ‘gin’ emphasised in clear white italic on a red background. The company also explained that the front label included ‘Organic Gin’ in the centre of the packaging in a white font against a blue background. The alcoholic strength by volume (ABV) of the product was also clearly stated on the front of the packaging. On the back of the label, the company highlighted that the product included the ABV, a pregnancy warning, number of units per container/typical serve and the list of ingredients, all of which were typically found on alcoholic drinks labelling.

The company explained it did not consider the packaging to be novel, as several other gins packaged in similar oil type containers, were available on the market. However, the company explained that if the design were to be considered novel, the alcoholic nature of the drink was communicated on its packaging with absolute clarity, nonetheless. Referencing a previous case regarding CollaGin, which was not upheld by the Panel under Code rule 3.1, the company noted the similarity in placement of positive alcohol cues on the packaging of Engine Organic Gin. The company therefore considered that there was no ambiguity to the alcoholic nature of the drink.

In response to the complaint under Code rule 3.2(f) the company explained it did not condone or encourage drink-driving, nor was there any such messaging on the packaging or in wider brand marketing materials. On the contrary, all marketing materials contained the message ‘NEVER DRINK AND DRIVE’. The company stated that the shape of the oil can container in isolation, or when considered in combination with the slogan ‘fuel the dream’, did not suggest a consumer should drink and drive.

The company explained that ‘fuel the dream’ was a slogan which derived from the founder’s vision to be ceaseless in pursuit of one’s dreams. ‘Fuel’ was also a reference to the shape of the bottle and a play on the vehicle theme of the brand. However, none of the elements included on the packaging encouraged consumers to drive after consuming Engine Organic Gin.

Referencing a previous case considered by the Panel regarding Cronk Y Voddy under Code rule 3.2(f), the company noted that inclusion of driving paraphernalia was not inherently problematic, and that Engine Organic Gin did not include express reference to driving or use driving-related imagery. The company explained that responsible alcohol consumption was at the heart of Engine Organic Gin’s brand, including company policies built around a zero tolerance for drink-driving. Additionally, the company explained that Engine Organic Gin included a drink responsibly message on the rear label of the packaging, and that Disaronno International UK Ltd was also a member of Drinkaware. The company stated that the oil can shape of the container and the reference to engines was not an express or implied reference to driving, nor did it constitute an association with drink-driving. The company explained that it did not have any associations with the motor industry within the UK and explained that it did not believe that there was any reason that consumers would equate Engine Organic Gin with immoderate or irresponsible consumption, such as drink-driving.

The company noted that the complainant also raised concerns regarding the website for Engine Organic Gin. The company explained that the website built on the vintage theme of the brand and featured a garage of the era which was consistent with the oil can shape of the container. The ‘Gin Station’ garage was in keeping with the wider brand theme and was not dissimilar to UK petrol stations which also sold alcohol. The company maintained that the website did not in any capacity encourage drink-driving or other irresponsible behaviours.

The company addressed the concerns raised regarding Code rule 3.2(h) and disagreed that the packaging was ‘gimmicky’ but rather innovative and award winning. The company stated that it was not unusual for producers to take inspiration from real life objects when designing containers as evidenced by a variety of spirits available to consumers on the market. The company stated that it was unaware of any popular children’s toy which was in the shape of a 1970’s engine oil can, and it was therefore unlikely to be appealing to, or resonate with, children.

The company explained that the type face was unlikely to resonate with under-18s as it was not in a bubble writing font, nor did it use text with thick bold black lines which could have particular appeal to children. While the colours used on the label could be considered bright, the company clarified that it did not employ highly contrasting or luminated colours. The colours used in the design were white, red and blue, including a red box logo which was not an unusual design for alcohol drinks packaging. The overall design and shape of the container was mature and in connection with vehicles of the 1970s, to appeal to an adult audience.

The company stated that the slogan ‘fuelling the dream’ was unlikely to have particular appeal to young people and explained that the average consumer was likely to understand the slogan as hyperbole. While the company disagreed with the comparison between Engine Organic Gin and a caffeinated soft drink, it noted that caffeinated soft drinks are often used as mixers with spirits and are unlikely to have a particular appeal to under-18s. Additionally, the company stated that the slogan should be taken in context of the drink which was in the shape of an oil can, which was unlikely to have particular appeal to children.

The company also explained that its website required age verification in order to access it, and it carefully targeted its online advertising at adults.

Finally, the company addressed the concerns raised under Code rule 3.2(j). The company explained that the word ‘organic’ did not suggest that the drink had health benefits but was an accurate reference to the high-quality organic nature of its ingredients. The company disagreed that the slogan ‘fuels the dream’ suggested that consumption of the gin could help consumers achieve their dreams. The company noted that no language used on the packaging stated that a consumer needed to drink the product in order to achieve their dreams, nor did the line suggest the alcohol could improve an individual’s capabilities or faculties. The company stated that the average consumer was unlikely to interpret the line to have such meaning and that there were no direct or implied claims that Engine Organic Gin had any therapeutic qualities. Instead, the slogan related to the oil can shape of the container and the gin was fuel for a cocktail.

The company reiterated that the branding for Engine Organic Gin clearly reflected that alcohol should be consumed safely and responsibly, and that it took its social and legal obligations seriously. The company explained that it had implemented robust practices to ensure that the branding was innovative and fully complied with the Portman Group Code.

The Panel’s assessment

The Panel discussed if any additional Code rules should be considered. The Panel noted that the packaging included the line ‘fuel the dream’ and that there was merit in reviewing the label under Code rule 3.2(e) to determine if any part of the packaging, directly or indirectly, suggested consumption of the product could lead to social success.

3.1
The Panel considered the novel container which resembled a traditional oil can and that it was an unusual style of product packaging for gin. The Panel noted that the front of the product included the name ‘Engine’ in large white font on a red background and that within this, the word ‘GIN’ was emphasised in italic font. While the Panel considered that this was not overtly clear as denoting the alcoholic content of the drink in and of itself, the words ‘Organic Gin’ also appeared in prominently sized white font on a blue background with the product’s alcoholic strength by volume (ABV) also depicted on the front. In addition to this, the back label included ingredients which included ‘alcohol’ and ‘distilled gin’, alongside responsible drinking messaging, the product’s ABV, a pregnancy warning, Drinkaware signposting and the unit content per container and serve. Whilst the Panel noted that the packaging was novel in design, the numerous positive alcohol cues were presented clearly on both the front and back label and sufficiently communicated the drink’s alcoholic nature with absolute clarity. Accordingly, the Panel did not uphold the complaint under Code rule 3.1.

3.2(e)
The Panel discussed whether anything on the packaging, including the line ‘fuel the dream’, suggested that consumption of the drink would lead to social success. After careful consideration, the Panel considered that ‘fuel the dream’ was likely to be understood as an internal aspiration, as opposed to directly, or indirectly, suggesting that consumption of the product would aid socialisation. As there were no other elements on the label which suggested consumption of the gin would make a consumer more popular, or contribute towards social success, the Panel concluded that Engine Organic Gin was not in breach of Code rule 3.2(e).

3.2(f)
The Panel discussed the company’s response and acknowledged that Engine Organic Gin created an association with motor vehicles as the packaging was designed in the style of a 1970’s oil can and included an engine symbol on the front of the packaging, which was typically found on the dashboard of a car as an engine warning light. Furthermore, to understand the marketing context of the product, the Panel had reviewed the product website which was designed to resemble a petrol station where consumers could purchase the drink through a virtual kiosk. The Panel noted that product’s online marketing further enhanced a link between the brand and motor vehicles.

The Panel discussed the wording of Code rule 3.2(f), in particular the emphasis on ‘encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness’. The Panel discussed the interpretation that a link between motor vehicles and alcohol was not necessarily prohibited by the Code rule, nor was it prevented by the spirit of the Code, as the wording was intended to prevent alcohol marketing from irresponsible consumption, including drink-driving, as opposed to preventing any association with motor vehicles.

The Panel discussed similar case precedents including Cronk Y Voddy, which had depicted a driver’s eye-view of someone driving a bike down a road, and Disco Forklift Truck, which depicted a character dancing on a forklift truck. In both cases, the Panel noted that while the decisions considered a motor vehicle and machinery respectively, the decisions related to the depiction of dangerous behaviour which was absent in this case.

The Panel then considered whether any part of the name or label of Engine Organic Gin encouraged consumers to engage in irresponsible consumption such as drinkdriving. The Panel noted that there was nothing on the label that suggested the product should be consumed before driving or in any other irresponsible manner. The Panel reminded producers to take care when referencing cars or other motor vehicles in alcohol marketing to ensure that there was no encouragement, directly or indirectly, to drink and drive. However, when taking all elements of the product packaging into consideration, the Panel concluded that there was nothing on the packaging which directly or indirectly encouraged a consumer to drink irresponsibly. Accordingly, the Panel did not uphold the complaint under Code rule 3.2(f).

3.2(h)
The Panel discussed whether Engine Organic Gin was likely to have a particular appeal to under-18s. Although the container was novel in design, the Panel noted it did not resemble a child’s toy or appear to be toy like. The Panel considered that the resemblance to a 1970’s era oil can was unlikely to be familiar to those born after the 1990’s and was unlikely to have a particular appeal to children. The Panel noted that the absence of child-like illustrations or use of a font style, which could have a particular appeal to under-18s. In light of this, the Panel concluded that the product packaging was unlikely to have particular appeal to under-18s and accordingly did not uphold the complaint under Code rule 3.2(h).

3.2(j)
Finally, the Panel discussed whether any part of the packaging of Engine Organic Gin suggested the drink had therapeutic qualities, could enhance mental or physical capabilities, or change mood and behaviour. The Panel considered that the line ‘fuel the dream’ was fairly ambiguous in its meaning when considered in isolation and could imply that consumption of the drink could help a consumer achieve a ‘dream’. The Panel noted that the back label included the sentence ‘sage and lemon is a traditional remedy to cure a sour mood’. The Panel discussed the wording and noted that it directly suggested that consumption of the drink could ‘cure’ a consumer’s bad mood by incorporating these ingredients, thus changing an individual’s mood. The Panel was particularly concerned that the suggestion of a ‘cure’ could directly appeal to those with poor mental health who may be more susceptible to substance misuse and concluded it was inappropriate for an alcoholic drink to directly suggest that it could provide a therapeutic quality. The Panel considered this wording alongside the line ‘fuel the dream’ and considered that the elements combined also suggested the drink had a therapeutic quality. The Panel therefore concluded that the product packaging suggested the drink could change mood and had a therapeutic quality, and upheld the complaint under Code rule 3.2(j).

Action by Company:

Made amends to product packaging to bring in line with the Code.

Producer:

Belcondie (Marketing & Product Sourcing) Ltd

Complaint:

“The use of King William of Orange as branding, and the ABV of 16.90% is playing to the sectarian elements which cause societal division particularly in the West of Scotland & Northern Ireland, which are stated to be the target markets.
https://www.scottishdailyexpress.co.uk/news/scottish-news/king-william-fortifiedwine-launched28038421?utm_source=twitter.com&utm_medium=social&utm_campaign=sharebar”

Complainant:

Member of the public

Decision:

Under Code paragraph 3.3
A drink’s name, its packaging and any promotional material or activity should not cause serious or widespread offence.

UPHELD

The company’s submission

The company stated that the name, packaging and promotional material of King William Fortified Wine did not breach the Portman Group Code of Practice.

Responding to the complainant’s claim that King William Fortified Wine played to the sectarian elements in the west of Scotland and Northern Ireland, the company stated that it assumed the allegation was based on the branding and strength of the product which may have more appeal to certain individuals within those markets. However, the company highlighted that it was unclear from the grounds of complaint how the packaging could cause serious or widespread offence on that basis.

The company asserted that it was important to understand the historical context of King William, a British Monarch who introduced the ‘1690 Distilling Act’ which banned French imported brandy to benefit the English economy. To the extent it would be read as referring to the Battle of the Boyne of 1690, the company said that King William fought and won that famous battle with an army which was made up of those of different faiths, nationalities, and culture, and he fought for the religious freedom of all. While King William was a Protestant, his victory was celebrated throughout Europe by both Protestants and Catholics, and he did not have a desire to have a single faith across the United Kingdom.

The company stated that when considered in its full historical context, it did not understand how the use of a British monarch on its packaging, or the alcoholic strength by volume (ABV), could cause serious or widespread offence, particularly a monarch who had fought for the religious freedom of all.

The company stated that ‘sectarianism’ implied strong negative feelings against a particular religion or sect of a religion. However, the company reiterated that it did not believe using the name or imagery of King William was tantamount to sectarianism, and as such did not believe that the drinks packaging could cause serious or widespread offence. The company noted that while the packaging may appeal to some consumers more than others, it did not consider that this constituted a breach of the Code.

The company stated that the ABV of the drink, 16.90%, was not intended to be a reference to the Battle of the Boyne and such claims had never been used by the company in its marketing. It also stated that the drink was launched both in Glasgow and other areas.

The company noted that while the ABV of 16.90 was intended as a reference to the ‘1690 Distilling Act’, this element could be changed to avoid the unintended assumption that it was a reference to the Battle of the Boyne.

The Panel’s assessment

The Panel discussed King William of Orange as a British monarch in a contemporary and historical context. The Panel noted that in some communities in the UK, King William’s image and events associated with him were intrinsically linked to sectarianism and he was seen as a figurehead by one side of a faction. As part of its discussion, the Panel noted that sectarianism still caused serious conflict in some areas of the UK today and that whilst this conflict may not be an issue for the wider UK population, it would be a known experience for some communities in Scotland and Northern Ireland. On this basis, the Panel noted that the issue was unlikely to be one of widespread offence, but rather one that required consideration as to whether such marketing could cause serious offence to particular groups.

The Panel discussed views that had been obtained from a leading Scottish antisectarianism charity, Nil by Mouth. The charity explained that as a figure, King William, had historical importance on both sides of the Irish Sea and was a figure closely associated with Protestantism. The charity highlighted the importance of symbolism and how historical figures, imagery, colours and dates could be viewed in the context of identity, intolerance and religious prejudice in 21st century Scotland. The charity explained that in the context of Glasgow, the city topped the table for number of religiously aggravated arrests every year, in many of which alcohol played a part, and that issues with religious prejudice since the reformation were indisputable. The charity clarified that, in its opinion, symbolism was highly important in Glasgow, both as a way of expressing one’s identity and of expressing hostility to someone else’s. The Panel discussed the meaning of symbolism in the context of historical figures and events and noted that in this particular instance, there would be some individuals who would celebrate King William of Orange and others who would find reference to him offensive. The Panel acknowledged that interpretation of a historical figure would ultimately depend on the viewpoint of an individual and that in most cases of historical figures, was likely to represent different things to different individuals. The Panel noted that accompanying guidance to the serious offence rule issued by the Portman Group highlighted the point that distasteful marketing was not enough to breach the Code and that the level of offence caused must be serious if it was not widespread.

The Panel then considered the product packaging in its entirety, within the context referenced above. The Panel noted the repetition of the drinks alcoholic strength by volume (ABV) 16.90%, which appeared on the product packaging five times. The Panel considered the presentation of the ABV and noted that it was unusual to see an ABV presented to two decimal places as UK labelling legislation stipulated that presentation should not be to more than one place and considered that the two decimal place presentation was intentional to directly associate the number with a year. In addition to this, the Panel noted that on the top of the label, and at the back of the label, 16.90 was included without a reference to a percentage sign which further removed the link to the product’s ABV and instead framed the number as a historical date reference in the context of King William of Orange. The Panel discussed the company’s response that the number presentation was a reference to the ‘1690 Distillery Act’ and considered that in the context of King William, was far more likely to be interpreted as a reference to the Battle of the Boyne. The Panel discussed the Battle of the Boyne as a significant event in British history and noted that the event was a key turning point in terms of its ramifications for religious and political views, particularly in relation to sectarianism. The Panel considered this in the context of the product packaging which also incorporated the colour orange, imagery of King William on horseback as though leading his troops into battle, above the description of the product as “fortified” and repetition of 16.90 beyond factually communicating the drink’s ABV.

The Panel discussed how the overall impression conveyed by the label was likely to be perceived by communities where sectarianism was prominent. The Panel considered that for those affected by sectarianism, the combination of elements on the label were likely to be divisive and inflammatory and would further fuel division in certain communities where religiously aggravated crime was still prevalent.

Whilst the Panel agreed with the producer that the use of King William in and of himself as a monarch did not cause serious offence, it concluded that the presentation of the packaging, particularly the overt references where the product’s ABV had been used to signify a year that linked the product, and King William, to a specific conflict associated with sectarianism was likely to cause serious offence to certain communities. Accordingly, the complaint was upheld under Code rule 3.3.

The Panel welcomed the producer’s offer to work with the Portman Group’s Advisory Service to amend the label in order to address the issues presented by the inclusion of 16.90 as a number, as opposed to a factual representation of the product’s ABV.

Action by Company:

Making amendments to product.

Producer:

The Bearded Brewery

Complaint:

“I wish to complain about Bearded Brewery (yes them again) and their product Unshaven Maiden https://www.thebeardedbrewery.co.uk/product/unshaven-maiden/. It’s unnecessarily sexual.”

Complainant:

Brew Cavern (competitor)

Decision:

Under Code paragraph 3.2(d)

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

UPHELD

Under Code paragraph 3.3

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

UPHELD

The company’s submission

The company stated that the logo on the drink depicted a pirate ship and featured a female siren, or mermaid figurehead, with a beard which was positioned at the front of the ship. The company explained that ‘Unshaven Maiden’ was a reference to the name of the ship.

The company clarified that the tagline “search for the cherry’d treasure” was in reference to both the cherry flavour of the cider and was a play on the words for “search for buried treasure”; the treasure the pirates would search for.

The company concluded that it did not agree with the complainant’s assertion that any element of the packaging linked to sexual activity, and strongly disagreed with the complainant’s view.

Company response to provisional decision:

The company fundamentally disagreed with the basis of the complaint, and the Panel’s provisional decision. The company explained that it was a small producer based in a Cornish community which had strong ties to fishing. The company stated that the image on the label was not misogynistic or sexual and was in line with traditional ship masts and that ‘maiden’ had been chosen to reference a ‘maiden voyage’, a well-known term in nautical language The company explained that the ‘maiden voyage’ reference had been used to denote the company’s first cherry flavoured cider and that it had not been used as a reference to a young virgin woman. The company added that it sold its products from the brewery and in some on-trade bars local to the community where consumers would be familiar with such language. Additionally, the product was sold online through the company’s website.

The company stated that it had conducted its own market research online by polling its consumer base on Facebook and had posed the question of whether the product label caused offence. The company stated that the artwork had received praise from its consumers with comments highlighting that it was a positive representation of femininity outside of stereotypical beauty standards, supported gender fluidity and was not offensive.

The company reiterated that the product artwork and name were not intended to refer to a young woman or the pursuit of virginity and strongly opposed the Panel’s interpretation in the provisional decision.

The Panel’s assessment

The Chair opened discussion by clarifying that the label the complainant had submitted had been subject to minor amends which featured on the packaging that had been sent to the Panel for consideration. The Chair clarified that the Panel’s decision would only concern the original label which had been the subject of complaint.

Code rule 3.2(d)

The Panel discussed the logo, name, and tagline under Code paragraph 3.2(d). The Panel noted that the figurehead, while contextualised on a ship, was partially nude despite the breasts of the mermaid being somewhat obscured by her hair. When discussing the presentation of the figurehead, the Panel noted that it was not proportionate to the size of the ship and was therefore a prominent feature on the label. Alongside this, the image, while clearly a mermaid, was life-like and not directly comparable to a typical figurehead as it was not wooden like the rest of the ship, making it more representative of a real person.

When considering the figurehead in combination with the name, Unshaven Maiden, the Panel noted that it could be a reference to the mermaid’s beard and the company name ‘Bearded Brewery’. However, the Panel also noted that ‘maiden’ could relate to a virgin or an unmarried young woman. Furthermore, the Panel considered this alongside the tagline “search for the cherry’d treasure”, which reinforced the innuendo linking to virginity. While the Panel acknowledged that the line “search for the cherry’d treasure” could be a reference to the flavour of the cider, and a play on words for “buried treasure”, the overall impression conveyed by the product packaging meant that the overriding meaning communicated was a deliberate double entendre with strong sexual connotations.

When considering these elements in combination, the Panel concluded that the name, the tagline and prominent depiction of the partially nude, life-like mermaid all linked to a sexual innuendo referencing a young maiden’s virginity and created an indirect association with sexual activity.

The Panel discussed the company’s response to the provisional decision, in particular that ‘maiden’ was used in reference to its first cherry cider and would be understood by its consumers in the local community. The Panel noted that the product was sold both in the local community and to the rest of the UK through the company’s website. The Panel acknowledged that the company had not considered how the overall impression of the packaging may be interpreted by a wider UK audience and that whilst it was not intended for certain elements to indirectly link to sexual activity, the overall impression of the product label did create this association. Accordingly, the Panel upheld the complaint under Code rule 3.2(d).

The Panel reminded producers to consider how the overall impression of packaging may be understood beyond local communities, particularly when products were available nationally.

Code rule 3.3

During discussion of the overall impression conveyed by the product, the Panel noted that the prominent depiction of the mermaid figurehead unduly focused on the mermaid’s body which objectified the character and, to a certain extent, women more broadly. The Panel discussed the company’s social media polling but noted that the research was only based on local consumer research, namely those that were already engaged with the brand and was not representative of the wider public. The Panel discussed some of the comments, including praise for the artwork that promoted gender fluidity but clarified it was not the ‘unshaven’ element of the image which caused widespread offence.

The Panel expressed concern that “search for the cherry’d treasure”, when understood in the wider context of a young virgin maiden, and the prominent depiction of the mermaid character with barely covered breasts, resulted in sexual objectification. The Panel concluded such messaging was offensive, and damaging in the wider context of stereotypes, which was out of place with societal values in 2023. When considering the indirect association with sexual activity, the Panel concluded that the overall impression conveyed by the packaging was likely to cause widespread offence. Accordingly, the product was found in breach of Code rule 3.3.

Action by Company:

The company has 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.

RAB – Unshaven Maiden

Dragon Soop Venom

Producer:

Corinthian Brands (CBL) Ltd

Complaint:

“NIADA is the alliance which facilitates co-operation among voluntary and community sector organisations supporting those affected by alcohol and drug use, and their families. We as a collective membership group wish to submit a complaint about caffeinated alcoholic drinks.

Introduction
As an alliance, we have concerns around the drink ‘Dragon Soop’ and those similar. We at NIADA believe that this drink breaches numerous rules stated in the code of conduct including the Alcoholic content, Strength, Appeal to under 18s, Popularity, Anti-social behaviour and Sexual Success. Dragon Soop and other high caffeinated drinks such as ‘Screaming Devil’ and ‘Four Loko’ all raise our concerns as they have such high content of alcohol as well as caffeine and are heavily popularised and consumed by young people. Following a number of focus groups and consultations with young people we believe Dragon Soop to be the more popular drink of choice, so wish to move forward with an official complaint.

Alcoholic Content
Dragon Soop breaches the alcoholic content code outlined on the website that ‘the alcoholic nature of a drink should be communicated on its packaging with absolute clarity’ and we believe this is not the case. While the drink cans do state that they are 8% alcoholic content, this is marked at the bottom of the can, and initial advertising is perceived as an energy drink. NIADA members ran several focus groups with young people, both males and females of a range of ages, regarding Dragon Soop. The feedback we received highlighted that parents are unaware the drink contains alcohol and young people are choosing the drink for its high alcohol hit with potentially dangerous outcomes.

Strength
We believe the strength of the drink is breached as a standard 500ml can of Dragon Soop contains 4 units of alcohol. The National Health Service (NHS) recommendations for adult men and women is not to exceed 14 units of alcohol per week and to spread this over 3 days (NHS, 2018). One day of drinking 3 and a half cans exceeds this limit for adults, and we know from our focus groups young people drink more than one can in one sitting. One 17-year-old male fed back vomiting for hours after consuming 9 cans.

The high strength content encourages binge and excessive drinking and leads to irresponsible behaviour as most young people drink more than one can breaching the anti-social behaviour code of conduct. The high caffeine intake along with the high alcohol content masks the effects of drunkenness. Hence, young people don’t realise how intoxicated they are, which can lead to becoming unwell and engaging in risky behaviours.

Appeal to under 18s
We strongly believe that the drink breaches the under 18 code of conduct that ‘A drink, its packaging or promotion should not have a particular appeal to under-18’. Dragon Soop appeals to under 18s as the cans are very brightly coloured, have cartoons images and come in 12 different fruity and juice-like flavours that young people would enjoy and want to drink.
In addition to this, the drink can easily be purchased from the website https://www.dragonsoop.com/
Upon access to the page, it asks customers to enter a date of birth which can easily be construed. The drink cans are sold at £2.99, so are very clearly marketed to under 18s as they are so cheap with high alcohol content. Our service users have told us parents think they are drinking energy drinks because of the bright coloured packaging and fruit flavours. Our focus groups highlighted teenagers as young as 14 are drinking Dragon Soop, and reported suffering from heart palpitation and anxiety the next day. Marketing of the Dragon Soop brand is clearly aimed at young people through official merchandise on their website, where they sell a collection of t-shirts, hoodies and run competitions. The current competition is to win a customised Dragon Soop skateboard and a hoody.

Health effects concerns
At NIADA we have serious concerns about these high caffeinated and alcoholic drinks, especially Dragon Soop, as so many young people are consuming this drink usually in large quantities. Our focus group concluded that while young people drink the cans, they also mix them with other substances. One 16-year-old female reported ‘they are sweet and fruity flavours they can be mixed with vodka’.

For young people, both large quantities of caffeine and alcohol can be harmful and both of these together in one drink is very concerning. In addition to this, it is worth noting that one can contains more than double the daily recommended limit of caffeine and can exceed the limit of alcohol units daily.

Alcohol can cause abnormal heart rhythms in the body, high blood pressure and can damage the heart muscle and cause other diseases such as strokes, liver problems and some cancers. Alcohol is also high in calories and can lead to weight gain and health-related issues in that sense (British Heart Foundation). Caffeine in large amounts can also have effects on the body and health, such as increased breathing and heart rate as well as increased mental activity and physical energy. The body can also become dependent on caffeine physically and psychologically and then feel withdrawal symptoms from it (Better Health Channel). Hence, excess levels of both can have adverse effects on health, especially young people.

Conclusion
As a membership group that delivers alcohol and drug services daily to a large number of young clients, we feel the need to raise our concerns around this drink as It breaches numerous codes of conduct. Therefore, we are asking you to consider all points made above and take on board our recommendations to reduce both the alcohol and caffeine content and rethink the marketing strategies of this brand and particularly the impact it has on our young people and their health.”

References
https://www.betterhealth.vic.gov.au/health/healthyliving/caffeine
https://www.bhf.org.uk/informationsupport/support/healthy-living/healthy-eating/alcohol
https://www.nhs.uk/live-well/alcohol-support/calculating-alcohol-units/
Further complaint clarification from complainant:
“7.5% is a high level of alcohol compared to other sweet/fruity drinks on the market which are typically around 5%. We feel the bright packaging and marketing of this adds to the popularity of these high caffeine, high alcohol drinks”.

Complainant:

Northern Ireland Alcohol and Drugs Alliance

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(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.

NOT UPHELD

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

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.

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

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:

Response to initial complaint:
The company began by explaining that the Dragon Soop brand was conceived and developed with due regard to every aspect of the Portman Group Code of Practice. The company explained that the brand continued to be marketed and sold with scrupulous attention to the standards set out in the Code and that meticulous attention was given to its design and packaging to ensure it complied with both the letter and the spirit of the Code. The company highlighted that it was a Code Signatory and had willingly cooperated with the Portman Group and supported its principles and aims.

The company explained that in 2015, Dragon Soop was fully investigated by the Independent Complaints Panel (Panel) under Code rules 3.2(f) and 3.2(h) which it found to not be in breach. The company highlighted that it had received a letter from the Chair of the Panel that there had not been any breach of the Code and that the decision was final.

The company then explained that in its other formal submission to the Wicked Watermelon complaint, the company regarded the 2015 Strawberry and Lime case as having set a precedent and was therefore perplexed and disappointed to find Dragon Soop subject to another formal investigation. The company pointed out that it seemed that the Chair of the Panel had decided that the 2015 Strawberry and Lime case did set a precedent and had stated that the case against Strawberry and Lime would not continue despite the complaint capturing the entire product range. The company stated that the Chair’s decision was significant because whilst the 2015 Strawberry and Lime complaint was about the old packaging, this decision meant that the new and current packaging for Strawberry and Lime had been exempted. The company stated that if Strawberry and Lime was exempt for the reasons stated above by the Chair, then the entire range should also be exempt as there was only a small difference between the various flavours which was the colour of the can. Additionally, the difference between the old and new packaging of the Dragon Soop range was only minor.

The company then explained that its business had been adversely affected by the delays and uncertainties related to the Wicked Watermelon complaint brought by a member of the public, and which the company had taken great pains to answer in depth and with significant detail. However, that case had been delayed so that a further case brought by NIADA could be considered alongside it.

The company stated that a company, whether it be a Code Signatory or member of the Portman Group, should be able to trust that a ‘final’ decision was final. The company explained that should the same product be subject to complaints of the same nature on more than one occasion, businesses would find it impossible to make medium to long-term planning and investment decisions.

The company stated that it had respect for the work of specialist organisations like the Northern Ireland Alcohol and Drugs Alliance (NIADA) and supported the work it did to aid and educate the often vulnerable, under-privileged young people who were addicted to immoderate and dangerous behaviour with regard to substances and alcohol. However, the company stated that NIADA’s focus was narrow and specialised and its evidence that had been taken solely from its work with this particular group was not impartial.

The company stated that NIADA had made a number of unreliable observations, incorrect contentions and factual mistakes that the company wished to comment on.

Firstly, the company highlighted that NIADA had stated that it wished to submit “a complaint about caffeinated alcoholic drinks”, but that the organisation had only singled out Dragon Soop from a group of other caffeinated alcoholic drinks. The company stated that the organisation had done this based on the unscientific basis that Dragon Soop is what NIADA called “the more popular drink of choice.”

The company then analysed the research sample group of caffeinated alcoholic drinks consumers which had been carried out by Dunlewey Addiction Services. The company stated that this group was unrepresentative of the demographic in the UK. The company stated that from the evidence supplied, the research sample was limited to one single focus group ranging in age from 11 to 25, although NIADA had mentioned that there were others which it had not supplied as evidence. The company stated that this group solely consisted of people with an acknowledged history of addictive behaviour and alcohol abuse and that it was unrepresentative of Dragon Soop’s adult target market of 18- to 30-year-olds. The company also noted that the research had been carried out in May 2021, a year before the complaint was made. The company questioned why it took a year to submit the complaint, particularly given the timing of the other complaint made by a member of the public against Wicked Watermelon, which the company had responded to but remained unresolved.

The company then addressed some points of accuracy and stated that Dragon Soop did not “breach the alcoholic content code outlined on the website” as highlighted in paragraph four of NIADA’s letter. The company also explained that Dragon Soop did not contain 8% alcohol as stated in paragraph four of NIADA’s letter but that it was 7.5% ABV. The company further explained that it was incorrect to state that Dragon Soop contained four units of alcohol as it contained 3.75 units.

In the complaint headed paragraph ‘strength’, the company stated that NIADA had cited an unsubstantiated figure to make a subjective and misleading statement where it read “One day of drinking 3 and a half cans exceeds this limit for adults.” The company said that the statement did not withstand rigorous scrutiny. The company explained that the same assertion could be used for any alcoholic drink which was abused by people with alcohol or substance abuse difficulties. The company highlighted that NIADA had not presented any evidence that people abused Dragon Soop more than they would abuse vodka, cider, wine or any other alcoholic beverage. The company stated that this information could not be relied upon, nor was indicative of the wider market, since the participants in the sample group were unable to limit their intake of alcohol.

The company then examined the second paragraph under the heading entitled ‘strength’ which stated that “the high caffeine intake along with the high alcohol intake masks the effect of drunkenness”, which the company stated NIADA had not provided proof of. The company stated that the formulation did not break any of the Portman Group’s rules and that the Portman Group must agree with this because according to an SHS Drinks’ press statement, the Advisory Service had been consulted by the company prior to the launch of WKD X, which was a drink that closely mirrored Dragon Soop, and was destined for major grocery outlets in May 2022.

The company explained that at the time the complaint was made, Dragon Soop had 13 flavours, not 12 as stated by the complainant in the first paragraph under the header “Appeal to under 18s.” The company stated that at the time of its formal submission to the complaint, Dragon Soop now had 14 flavours.

The company then stated that it was factually incorrect to state that Dragon Soop could be “easily purchased from the website,” as stated by the complainant, because it could not be purchased via the Dragon Soop website and had never been available to do so. In response to the complainant’s point about access to the Dragon Soop website (which appeared in paragraph three of the ‘Appeal to under 18s’ section), the company explained that the website used an age check system to act as a gateway that was widely used across the alcohol industry.

The company then explained that Dragon Soop could not be described as ‘cheap’ as stated by the complainant in the ‘Appeal to under 18s’ section of the complaint. The company stated that the product was expensive when considering the cost per unit of alcohol. The company stated that in order for Dragon Soop to comply with Minimum Unit Pricing, which was in force in Scotland and Wales, it should be sold for at least £1.87 per can, but that instead it was sold for £2.99.

The company then addressed the complainant’s claim that Dragon Soop was “clearly aimed at young people through official merchandise on their website, where they sell a collection of t-shirts, hoodies and run competitions.” The company stated that Dragon Soop was marketed strictly in accordance with the Portman Group’s Code and that its website promotions were similar to other alcohol producer websites.

Under the ‘Health effects concerns’ paragraph of the complaint, the company highlighted that NIADA had stated that “so many young people are consuming this drink usually in large quantities.” The company stated that this claim was based on shaky evidence of one small focus group made up of young, often under-age, substance and alcohol abusers. The company stated that there was no proof that Dragon Soop was consumed in greater excess than any other alcoholic drink. Additionally, the company stated that young people who did consume alcohol in great excess might reasonably be supposed to consume any popular alcoholic drink in large quantities.

The company explained that Dragon Soop did not exceed the recommended daily alcohol limit for adults and that current guidelines did not have a daily limit. The company then stated that it wanted to respond to NIADA’s statement that “one can contains more than double the daily recommended limit of caffeine and can exceed the limit of alcohol daily.” The company explained that the common practice of on-trade and informal self-mixing of alcoholic drinks with caffeinated drinks often resulted in a drink that was far higher in alcohol than that of Dragon Soop. The company stated that in contrast to self-mixed drinks, the levels of both alcohol and caffeine were clearly printed on the Dragon Soop can so that consumers could be informed and be drink aware. The company pointed out that Dragon Soop in a 500ml can was 7.5% ABV with 35mg of caffeine per 100ml. In contrast, Red Bull, which was often mixed with vodka (37.5% ABV) in the on-trade had 32mg per 100ml of caffeine. The company also explained that Coca Cola Classic which contained 32mg per 33cl can was also often mixed with vodka at 37.5% ABV. The company stated that vodka had a much higher ABV than Dragon Soop and that Coca Cola and Red Bull had comparable rates of caffeine. The company also highlighted that there were some popular recipes, such as an Irish cream liqueur hot coffee recipe that had both a higher caffeine and alcoholic strength than Dragon Soop.

In conclusion for this section of the producer’s formal response, the company explained that NIADA had incorrectly stated that Dragon Soop ‘breaches numerous codes of conduct.’ The company stated that this was unfounded and noted that no evidence or detail was presented by NIADA to support this misleading statement.

With regard to the research submitted by NIADA in support of its complaint, the company noted from previous Panel rulings the stringent standards that the Panel required when research was accepted. The company stated that it was confident that the Panel would agree that NIADA’s research did not meet these standards.

The company then addressed the specific Code rule breach allegations from NIADA.
In response to rule 3.1, the company stated that it believed it complied fully with this rule and that it took the imperative to make clear the exact nature of the drink seriously so that it could not be confused with an energy drink. The company pointed out that the brand artwork deliberately ensured that the alcoholic nature of the drink was displayed all around and all over the can. The company highlighted that the word ‘alcoholic’ appeared three times on the neck rim and was repeated in the main body of the can in larger, bolder text and that the text ‘Fermented malt beverage’ was also featured. The company stated that the alcohol content ‘7.5% vol’ was repeated five times around the base of the can and that there was a clear and prominent ‘7.5% vol’ on the main body of the can, as part of the brand logo. The company explained that the alcohol content was also featured on the rear of the can, next to ‘500ml.’ In addition to this, the company stated that the Drinkaware website also featured prominently, which did not feature on any soft drink or energy drink brand. The company also highlighted that there was a drink responsibly message on the can. The company then explained that on Dragon Soop Venom, the word ‘alcoholic’ or the ABV was featured in 11 different areas on the packaging. The company stated that all of this displayed a commitment to clarity and that this was shared by very few other popular alcoholic brands.

In support of this, the company submitted a composite image of the top six energy drinks in the UK to illustrate the difference between the presentation of Dragon Soop as an alcoholic brand, and those that were energy drinks, in order to ensure that there was no confusion. The company pointed out that this image showed that the word ‘ENERGY’ was integral to all six of these brands and that it appeared in bold type and capitals so that it was the second most eye-catching word on the cans, second only to the prominence of the brand name. The company explained that in contrast, the word ‘energy’ did not appear on any of the Dragon Soop cans. The company explained that the use of the word ‘ENERGY’ on the energy drinks was used as a crucial identifier to denote the exact nature of the drinks. The company reiterated that Dragon Soop did not feature the word ‘energy’ at all, and that there were no other cues or any explicit statements which might mislead as to the alcoholic nature of the brand. The company provided a composite image of two competitor products in comparison to Dragon Soop. The company stated that the image would allow the Panel to compare its efforts to communicate the alcoholic nature of Dragon Soop with two highly popular ready to drink brands.

The company then explained that since Dragon Soop had been launched in 2010 there had only been three complaints in the intervening 12 years (the complaint from 2015 which was considered against Dragon Soop Strawberry and Lime, which was found not to be in breach of the Code, and the other two which were currently subject to investigation.) The company stated that this was a remarkably low figure for a brand that sold 13.6 million cans per year.

The company then moved on to address the concerns that the Dragon Soop range breached rule 3.2(a). The company explained that there was a balance to be achieved in relation to this code rule in order to ensure that the alcoholic nature of the brand was clear, whilst not giving the alcoholic strength too much prominence so as to breach rule 3.2(a.) The company stated that it strived to find this balance in its packaging. The company explained that Dragon Soop’s packaging and marketing did not reference its intoxicating effect, and that the company did not allow mention of this by contributors to its social media. The company explained that it did not give undue emphasis to the alcoholic content and that it made sure the design and marketing materials made factual statements which made the alcoholic nature of the brand clear. The company highlighted that NIADA had not provided any credible evidence to back up its belief that Dragon Soop breached this rule. The company noted that Portman Group guidance stated:

“A factual statement that a product contains a particular ingredient, for example high caffeine content, is unlikely in itself to be problematic under the Code.”
“It may be necessary to inform consumers that a product contains certain ingredients, for example high caffeine content, but this must be done in a factual and ‘non emotive’ way.”
The company explained that it did not make health claims for Dragon Soop, nor did it give the caffeine content undue emphasis either visually or pictorially. The company explained that caffeine was mentioned on the can for information purposes in order to ensure that consumers who were sensitive to this ingredient would be in no doubt about the products’ contents. The company highlighted that nowhere on the can was the word ‘caffeinated’ used without the word ‘alcoholic’ except for the small print on the back which directly warned consumers sensitive to caffeine. The company highlighted that until 2021, no complaints regarding confusion with energy drinks had been received. The company stated that if it did not make the specific alcohol content clear, or reduced the number of times the descriptor ‘caffeinated alcoholic beverage’ appeared on the can, then it might be open to accusations from consumers and Trading Standards authorities of not being clear enough.

The company then addressed concerns that the products breached rule 3.2(b). The company stated that the research provided by the complainant related to one single focus group held in May 2021, a year before NIADA made its complaint to the Portman Group. The company asserted that NIADA did not present any credible evidence that the Dragon Soop packaging or promotional material suggested an association with bravado, violent, aggressive, dangerous, anti-social, or illegal behaviour. The company stated that the complainant made an entirely subjective statement.

The company stated that NIADA could not claim to have knowledge of what ‘most young people’ did, as its day-to-day work and research was conducted with a very specific group of young people, all of whom had serious alcohol or substance abuse issues. The company explained that this research group could not in any way be seen to be representative of the population as a whole. The company argued that any extrapolations about the behaviour and attitudes of the wider population based on research carried out solely with this group would be skewed, misleading and far from impartial.

The company stated that NIADA seemed to make the general case that high strength alcohol in and of itself caused anti-social behaviour. However, the company stated that if this was true, a well-known vodka brand with a 37.5% ABV would be far more likely to cause excess drinking and anti-social behaviour than Dragon Soop at 7.5% ABV.

The company then addressed the concerns that the products breached rule 3.2(f). The company highlighted that the complainant had not provided any credible evidence to back up its claim and that this was because there was no evidence to be found. The company asserted that it categorically did not encourage illegal, irresponsible or immoderate consumption on its can, in its social media content or correspondence. The company stated that it was fully aware of this Code rule and that its designers, media managers and staff took scrupulous care to abide by it.

The company agreed that four participants in the focus group had provided quotes that demonstrated they used Dragon Soop irresponsibly, and for one participant, immoderately. However, the company stated that the participants in this focus group were young people with known alcohol abuse problems and so whichever alcoholic drink they chose, it would be likely that they would consume it irresponsibly and immoderately. The company stated that whilst their responses were wholly regrettable, they were not surprising and could not be admissible because they constituted a skewed unrepresentative sample. The company explained that if NIADA had put together a similar small sample group of its clients who preferred other types of alcohol such as rum, vodka or cider, and were then asked about their abuse of that drink, they would likely give similar answers.
The company then turned to address the concern that the product range breached rule 3.2(h). The company stated that the current packaging of Dragon Soop, which only had minor changes, was more scrupulous in its adherence to the Code than the Strawberry and Lime product which was considered by the Panel in 2015 and found not to be in breach of the Code. This, the company stated, was the result of continued effort to evolve any design changes responsibly and in line with the Code.
The company stated that it recognised that while each element of the marketing and design of Dragon Soop was important, the overall impression was the most important element to avoid direct or indirect particular appeal to under-18s.

The company highlighted that compared to many RTD brands and hard seltzers, which were indistinguishable from normal soft drinks and seltzers, the packaging of Dragon Soop clearly and unambiguously signalled its alcoholic status and therefore its suitability to 18s and over only. The company stated that this was achieved not only with the prominence of the words ‘7.5 vol’ but also with its visual cues and overall effect.

The company noted that there were specific cues which had been defined by the Panel as possibly having a particular appeal to under-18s. ‘Bright, high contrast colours’ were an example and the company highlighted that many alcoholic brands featured colour schemes which could be described in this way. In contrast, the company explained that Dragon Soop was specifically designed not to be garish or particularly bright and that the different colours used throughout the range were to denote the various flavours within the range, as was common practice for flavoured alcoholic beverages.

The company stated that it had alluded to the prominence of specific statements about the alcoholic nature and alcoholic content of Dragon Soop above. The company explained that it had deliberately ensured that there were no negative cues to suggest the products were non-alcoholic as there was a total absence of childish imagery, childish fonts, terminology which was specifically popular with children and that whilst fruit flavours were referenced, no fruit imagery was used, which might suggest that Dragon Soop was a fruit drink rather than a fruit-flavoured alcoholic drink. The company stated that this was in contrast to many other fruit-flavoured alcoholic beverages. The company highlighted a couple of other fruit-flavoured alcoholic beverages as showing them to contain fruit imagery on the packaging.

The company then explained that the price of the product at £2.99 indicated it was a premium alcoholic drink as the cost per unit of alcohol actively discouraged under-age drinkers. In comparison, energy drinks such as Red Bull and Monster Monarch Juiced energy drinks sold for less (£1.35 and £1.59 respectively.)

The company submitted a composite image to illustrate the point that the use of fruit flavours and colours was widespread across the whole of the RTD drinks market. The company explained that popular flavours such as peach, strawberry and raspberry were widely used by major brands and that watermelon was a popular flavour with adult drinkers.

The company concluded by stating that it was important as a self-regulatory body that the Portman Group continued to be seen by all its members as demonstrably fair and transparent. The company noted that the Portman Group was obliged to proceed against a member company or Code Signatory every time a company was accused of a breach of the rules; regardless of who had made the complaint or however credible the complaint was. The company also explained that the Portman Group proceeded with breach procedure, even if the company had previously been cleared of breaching those rules. The company stated that the Panel’s decisions had far reaching consequences, which could potentially lead to a Retailer Alert Bulletin which resulted in the removal of a brand from all retail shelves.

The company explained that it had responded to the accusations of breaches against Dragon Soop Wicked Watermelon (the subject of a separate complaint) in a timely fashion in January 2022, and that at the time it had explained that the timing of this intervention could not have been more detrimental to its business. Additionally, because of this, a major initiative almost a year in the making was in jeopardy of being cancelled and the financial fall out measured in the millions of pounds.

The company stated that in March 2022, just before the Dragon Soop Wicked Watermelon case was about to be heard, the company was informed that a new complaint against the entire Dragon Soop range had been received and that the Chair had decided to consider both complaints together. The company stated that the Code Secretariat had explained that because Strawberry and Lime had been absolved in 2015 of not breaching any part of the Code, it would not be investigated further. The company asserted that since the labelling, alcoholic content, design and marketing was consistent across the range, it must set a precedent for the rest of the range. The company explained that it now found itself in the situation where both cases would not be resolved until late July 2022, or even later and that this had done inestimable damage to the company and the brand plans.

The company then highlighted that in the interim, with the future of Dragon Soop in limbo, SHS Drinks had declared in the trade press that in May 2022 it was launching WKD X, which it said closely mirrored Dragon Soop with an almost identical offering. The company highlighted a quote from the article that stated that WKD X “was developed in conjunction with guidance from industry watchdog the Portman Group.” The company stated that it understood it was against Portman Group rules for SHS Drinks to suggest that the Portman Group had endorsed its brand in this way, even when a producer had consulted with the Portman Group’s Advisory Service prior to launch. The company stated that it understood that Portman Group Code rules prevented disclosure of advice given by the Advisory Service. However, given the comment printed in the article that the “onus on getting the responsibility right” had been noted by WKD, the company stated that it was hard to imagine that SHS Drinks would have gone ahead with launching WKD X in its current form if the Advisory Service had advised that it breached any aspect of the Code.

The company concluded by stating that despite all of this, it continued to cooperate with the Portman Group in the hope that it would be formally recognised that the company understood its commitments as a Code Signatory and kept them, and that it did not breach the naming, packaging and promotion rules of the Portman Group Code.

The Panel’s assessment:

The Chair opened the case by providing an explanation of procedural background and discussed this with the Panel. The Chair noted that all complaint cases under the Portman Group’s Naming, Packaging and Promotion of Alcoholic Drinks Code (Code) were considered by each product stock-keeping-unit (SKU) and only applied to the product SKU subject to complaint. The Chair understood that the system had been designed to partially protect alcohol producers so that entire product ranges were not simultaneously ruled upon, and also supported the Panel’s approach that the overall impression of a product would always be considered and that this was dependent on a different product which could, for instance, be affected by a change in flavour, colour palette, artwork and size and presentation of packaging which could vary in a SKU range.

As further background to the case, the Chair explained that a case against Dragon Soop Strawberry and Lime had previously been considered by the Panel in 2015.The Chair explained that the case had not been upheld under any rule in the Fifth Edition of the Code and that because of this precedent, the Chair had ruled that the Strawberry and Lime product would not be considered by the Panel in 2022, despite the fact that a complainant had raised a complaint about the entire Dragon Soop range. Whilst the discussion would focus on the Dragon Soop Venom case, the Chair asked the Panel to note the relevant precedent that had been set in the 2015 Dragon Soop Strawberry and Lime case whilst also noting the difference between the two products.

The Chair discussed the criteria that all complaint cases were subject to under Informal Resolution and referenced clause 5.11 of the Code and explained the rationale of why the case had been subject to formal investigation, despite the 2015 Strawberry and Lime precedent. In addition to the product artwork and flavour being different to the Strawberry and Lime version, and therefore defined as a different product, the Chair explained that the Informal Resolution criteria meant that if a case was not clear cut, a company did not offer to address the potential issue and it was potentially not required to be amended or withdrawn (clause 5.13), then the case would need to proceed to full investigation by the Panel. The Chair reiterated that this did not necessarily mean that the product was therefore problematic, but rather that it did not meet the necessary criteria to be resolved under Informal Resolution.

The Panel then discussed the focus group research that the Northern Ireland Alcohol and Drugs Alliance (NIADA) had submitted as part of its complaint, and which had been conducted by Dunlewey Addiction Services. The Panel noted that the evidence consisted of one page of selected quotes from eight vulnerable people and that no information had been provided to explain whether the research had been conducted in line with qualitative research principles from the Market Research Society and that the research did not outline the methodology, provide details of what questions had been or detailed the composition of the focus group. The Panel also noted that the focus group only consisted of eight participants and that those individuals comprised a vulnerable group with addiction history. The Panel noted the producer response and agreed that the group could not therefore be considered to be reflective of wider UK society. The Panel also considered that the quotes that had been submitted as evidence in the focus group related to how the product was being consumed and misused by some young people, and that the discussions did not focus on how the product packaging or marketing caused or encouraged this behaviour. In addition to this, the Panel also noted that the quotes did not support the assertion that the product did not clearly communicate its alcoholic nature as participants clearly knew what they were drinking and had been seeking out alcohol to consume. The Panel therefore concluded that whilst the work of NIADA was important in helping those with alcohol and drug addiction, and that the Panel was not unsympathetic to these aims, the focus group discussion was not scientifically sound as there was no evidence that qualitative research principles had been adhered to. Finally, the Panel also noted that alcoholic energy drinks were a legal product in the UK and that it was not within the remit of the Code, or by extension the Panel in its application of the Code, to address the concern that the products contained caffeine and alcohol and had potential health effects.

Code rule 3.1 The Panel then moved on to discuss Dragon Soop Venom against Code rule 3.1. The Panel noted that the top of the can stated that it was a caffeinated alcoholic beverage and that this was repeated above the Dragon Soop brand name on the front of the can. The Panel also noted that the ABV was displayed prominently on the front of the can and repeated around its base, and that this was set against a black background which made it clear to consumers that the product contained alcohol. The Panel then considered the back of the can and also noted the prominent ‘7.5% vol’ displayed on the back, along with a drink responsibly message, pregnancy warning logo, unit content, UK Chief Medical Officers low risk drinking guidelines, signposting to Drinkaware and a logo which stated that the drink should not be consumed by under-18s. Therefore, when considering the overall impression of the product under rule 3.1, the Panel concluded that the positive alcohol cues on the Dragon Soop Venom product clearly communicated its alcoholic nature with absolute clarity and found that it did not breach rule 3.1.

Code rule 3.2(a) The Panel then moved on to discuss Dragon Soop Venom against Code rule 3.2(a). The Panel noted that the product repeated the ABV ‘7.5% vol’ on the front of the can, around its base and that it was repeated on the back. The Panel also noted that the strength of the product was quite high, in comparison to the average 4.6% ABV strength of RTDs as referenced in the Portman Group’s guidance on this Code rule. However, the Panel noted that the communication of the product’s alcoholic strength had been conveyed in a factual and proportionate way and noted that there was nothing on the can that placed undue emphasis on the product’s higher alcoholic strength or intoxicating effect. The Panel therefore concluded that Dragon Soop Venom did not breach rule 3.2(a).

Code rule 3.2(b) The Panel then moved on to discuss Dragon Soop Venom against Code rule 3.2(b). The Panel considered the dragon on the front of the can. The Panel acknowledged that there might be instances where dragons were used in popular culture to suggest danger and noted that the can featured claw marks on the front of the can. However, the Panel considered that the illustration of the dragon was a mature single line drawing and that it did not look aggressive. The Panel noted that in comparison to other products from the Dragon Soop range, and the Strawberry and Lime 2015 precedent, Venom was significantly different as it did not indicate a flavour and included additional artwork of a snake baring its fangs in an aggressive manner. The Panel considered that the name Venom had a clear association with poison, which it considered implied that the drink was dangerous to consume and therefore required bravado in order to do so. The Panel noted that the definition of ‘bravado’ was linked to boldness that was intended to impress or intimidate and considered that the repetition of the word ‘venom’ seven times around the top of the can further contributed to the product emphasising that it required bravado in order to drink it. The Panel also discussed the snake on the front and back of the packaging and noted that it was depicted in an aggressive striking stance with its fangs bared. The Panel considered that this also contributed to the overall impression that the product was inherently linked to poison, danger and intimidation, and that it therefore created an association with bravado. Whilst the Panel acknowledged that the product itself did not contain poison, the Panel noted that the product was marketed mainly on the danger and intimidation associated with venom and the aggressive snake imagery, as opposed to a flavour variant, and that the overall impression of the product created an association with bravado. The Panel therefore concluded that the name venom, presentation of ‘venom’ seven times around the top of the can and snake imagery with fangs bared on the front and back of the can created an association with bravado and breached rule 3.2(b).

Code rule 3.2(f) The Panel then moved on to discuss Dragon Soop Venom against Code rule 3.2(f). The Panel noted that the product contained 3.75 units and that this was below the recommended four units in a single-serve container as per Portman Group guidance. The Panel also noted that the product contained a responsible drinking message and a link to the Drinkaware website. The Panel then considered the rest of the packaging and noted that there was nothing else on the rest of the can that encouraged consumers to drink irresponsibly or immoderately. The Panel noted that the focus group research that NIADA had provided indicated that some young people were drinking Dragon Soop to excess. However, the Panel considered that this did not indicate that this was because the product’s packaging or marketing was encouraging young people to do so and also referred to its previous conclusion on the validity of the research submitted by NIADA. The Panel therefore concluded that Dragon Soop Venom did not breach rule 3.2(f).

Code rule 3.2(h) The Panel then turned to discuss the Dragon Soop Venom against Code rule 3.2(h). The Panel considered that the blue and green colour scheme on the packaging was different to the Strawberry and Lime 2015 precedent but noted that the colours were muted and were not bold contrast colours. With regards to the illustration of the dragon, the Panel noted the similarity compared to the Strawberry and Lime 2015 precedent and considered that the Venom version was still a simple line drawing, was mature in design, was not childlike and so would be unlikely to have a particular appeal to under-18s. The Panel also considered the font of ‘Dragon Soop’ on the front and noted it was set against a busy design and that it was unlikely to have a particular appeal to under-18s. The Panel noted that while the product may have a broad appeal, it did not have a particular appeal to under-18s. The Panel therefore concluded that the Dragon Soop Venom did not breach rule 3.2(h).

Code rule 3.2(j) The Panel then moved on to discuss Dragon Soop Venom against Code rule 3.2(j). The Panel noted that rule 3.2(j) had changed in wording between the Fifth Edition of the Code that the Strawberry and Lime precedent had been ruled under in 2015, and the current Sixth Edition of the Code which had added a new requirement that alcohol packaging and promotional material should not suggest that it could ‘change mood or behaviour’. However, the Panel also noted that the Chair had ruled that the Strawberry and Lime 2015 precedent was relevant despite this difference. The Panel considered that the product contained a high amount of caffeine, and that the caffeinated nature of the product was repeated around the top of the can, and above the Dragon Soop brand name on the front. The Panel noted that on the front of the can it stated that it contained ‘caffeine, taurine, and guarana’ and that the back of the can stated that it was ‘not suitable for children, pregnant women or persons sensitive to caffeine’. However, the Panel considered that the product did not, directly or indirectly, refer to the enhancement of physical or mental capabilities, or change mood or behaviour, based on the effect that drinking the caffeine would have on consumers. The Panel discussed the overall impression conveyed by the packaging and noted the producer’s response which highlighted that the can did not contain the word ‘energy’ which was a distinct difference to all other non-alcoholic energy drinks. The Panel noted that the back of the can stated that ‘Dragon Soop is a flavoured fermented malt beverage, containing high levels of caffeine (35mg per 100ml) blended with taurine, guarana & delicious flavours, resulting in a truly unique drinking experience.’ The Panel considered that this factually and neutrally explained the ingredients of the product and did not overemphasise the caffeine content or the effect that drinking caffeine and alcohol could have on consumers. The Panel therefore considered that the ‘unique drinking experience’ was in relation to how the product tasted different to other drinks on the market and did not market the product based on any potential therapeutic or mood or behaviour changing capabilities or benefits. The Panel therefore concluded that Dragon Soop Venom did not breach rule 3.2(j).

Company response to provisional decision:

The company noted the Panel’s rationale that Dragon Soop Venom was significantly different to the rest of the Dragon Soop range as it considered that Venom did not indicate its flavour and was marketed mainly on the danger and intimidation associated with venom, alongside the aggressive snake imagery. The company also noted the Panel’s point that Dragon Soop Venom had a clear association with poison, which implied that the drink was dangerous to consume and therefore required bravado to do so.

The company explained that Dragon Soop Venom was responsibly marketed, well understood by its target market and that ‘venom’ was a known flavour to its young adult target market. The company asserted that the Panel’s provisional decision was subjective and based on mistaken assumptions.

The company explained that ‘venom’ was the generic name of a well-known and popular type of cocktail and that it was a favourite among many young adults. The company added that the venom cocktail had been the inspiration for Dragon Soop Venom and that it was well-known across the UK with its target market of 18–30-year-olds.

The company then explained that Dragon Soop Venom had similar dominant flavour notes to its on-trade namesake which included orange, other fruit hints and a touch of the rich, round caramel associated with Bourbon.

The company stated that it was aware of at least three other pre-packed venom drinks and that this was further proof of how well understood the offering was. The company highlighted that the myriad of examples of venom cocktails online was testament to the popularity of the generic drink and the consumer demand for, and understanding of, the offering. The company stated that a Google search for ‘venom cocktail’ produced 8,470 results in 0.41 seconds.

The company then explained that in terms of the overall impression of the product, there was no evidence of confusion about the offering, its marketing, or the can artwork amongst its target audience. The company reiterated that despite selling over 3 million cans of Dragon Soop Venom since its launch in October 2018, it had not received any complaints regarding the Venom name or branding, or any concerns that the brand was associated with bravado or was linked to boldness that was intended to impress or intimidate.

The company then explained that unlike the on-trade or self-mixed venom cocktails, Dragon Soop in a 500ml can made clear the ABV and caffeine content.

The company stated that the name ‘venom’ had numerous associations, and many were the very opposite of the Panel’s conclusion that it was “inherently linked to poison, danger and intimidation”; many were of a positive nature.
The company then highlighted various definitions on Urban Dictionary, which stated that venom could simply mean ‘attention grabbing’, ‘worthy of respect’ and ‘cool’. The company also explained that a ‘venom’ tattoo could be a symbol of empowerment amongst women, as in a specific font it would be read upside down as ‘women’.

The company then turned to address the concerns that the Panel had about the repetition of the word ‘venom’ around the top of the can. The company noted the Panel’s belief that this contributed to the overall impression that the product required bravado in order to consume it. The company explained that the repetition of the word was to make a factual statement that ‘venom’, a flavour which was clearly understood by young adults, was the flavour of the product. The company stated that it was repeated seven times around the top of the can in the same way and same number of times as other flavour varieties of Dragon Soop, which, it pointed out, had been absolved of all breaches of the Code.

The company explained that, taken in conjunction with the well-known flavour of the product, it was reasonable to use the image of a snake, albeit one that took up a small part of the overall area of the can. The company stated that it was natural for a brand to make such a pictorial association when creating the can design. The company pointed out that contrary to the Panel’s assessment, the use of a snake image should not be assumed to be indicative of aggression or evil. The company explained that a Google search of the term ‘snake symbolism in literature’ showed that it was a complex symbol and was one of the oldest and most widespread symbols used in mythology. The company further explained that snakes were a symbol of fertility, healing, guardianship, rebirth or renewal, alongside more negative symbolism.

The company also provided examples of the use of snake imagery for a diverse range of other products, including cars and other alcohol brands.

The company then explained that if a Retailer Alert Bulletin (RAB) was issued against Dragon Soop Venom, which would prevent it from being sold, then every other drink which used the same name and which came under the Portman Group remit should be banned. The company added that if venom drinks were considered to be unacceptable because the name incited bravado and dangerous behaviour, then pubs and bars that also sold venom cocktails should also be prevented from selling them as it would disadvantage the company commercially.

The company then stated that its support of the Portman Group’s Code had been demonstrated by its history of cooperating with the Portman Group over many years.

Finally, the company highlighted that the brand’s target market was made up of 18 – 30-year-olds who loved to socialise and who got their information online from social media apps specifically aimed at this age group. The company stated that the members of the Panel were very different from that of its target market, and that this might be the reason why the Panel interpreted the brand, its offering, the visual cues on the packaging and its language in a wholly different way than its intended consumers.

The Panel’s assessment after company’s response to provisional decision:

The Panel discussed the company’s explanation that “Venom” was a well-known cocktail in the on-trade. The Panel noted that the company had not provided evidence that ‘venom’ was a well-understood flavour by young adults, or how the wider UK market would perceive the name. The Panel noted that web searches revealed that a typical ‘venom cocktail’ contained vodka, a well-known bourbon, a particular blue ready-to-drink alcoholic drink and orange juice. The Panel discussed the content of Dragon Soop Venom and noted that, due to the inclusion of well-known drinks in the on-trade, it was evident that those ingredients were not part of Dragon Soop Venom and that the actual ingredients appeared to differ significantly from those of a traditional “Venom” cocktail In addition to this, the Panel also noted that the product did not state that it was a ‘Venom-flavoured cocktail’, which would have gone some way to indicate that it was based on the on-trade Venom cocktail. The Panel considered that, for the majority of UK consumers, the word ‘venom’, without any qualifying descriptors, would not be widely recognised as a cocktail name in isolation.

The Panel sought to remind the producer that existing drink names in the on-trade did not constitute compliance with the Portman Group’s Code of Practice, as had most recently been demonstrated in the case against Porn Star Martini. The Panel also noted that its considerations could only be in relation to Dragon Soop Venom, as the product subject to complaint, and that it was outside of the Portman Group’s regulatory remit to regulate wholly retailer-led marketing activities.
The Panel then discussed the word ‘venom’ and whether it had any other well-known connotations or meanings. The Panel noted that the company had provided a definition from Urban Dictionary that stated that the word was used by younger people to mean ‘cool’ or attention grabbing. The Panel discussed this online interpretation and considered that, while a minority demographic of the UK population may use the word to mean ‘cool’, the majority of UK consumers would recognise the word to mean ‘poison’ in its day-to-day usage. In addition to this, the Panel also considered it was unlikely that the company intended ‘venom’ to mean cool in the context of the product, particularly when viewed alongside the snake imagery.
The Panel then considered the company’s claim that snakes were not aggressive animals. The Panel noted that the company had provided images of various brands which featured snakes and agreed that snakes were not always aggressive, but that the snake depicted on Dragon Soop Venom was in a clear striking pose with fangs bared. The Panel therefore remained of the view, that in this particular context, the snake depicted was aggressive. The Panel also considered that in comparison to other products from the Dragon Soop range, which the Panel had previously considered and not upheld under any section of the Code, Dragon Soop Venom had a different appearance. The Panel considered that, as pointed out by the company, the other products in the Dragon Soop range also included the flavour variant multiple times around the top of the can. However, the Panel considered that this presentation of the word ‘venom’, alongside the aggressive snake with its fangs bared, created an association with bravado.

Additionally, the Panel noted that Dragon Soop Venom was a relatively high strength alcohol, and a high strength caffeine product, and that while some consumers may recognise the word ‘venom’ to have a different meaning, the word was most synonymous with poison. The Panel therefore considered that as most people would be unaware of the link to the on-trade flavoured Venom cocktail, given the absence of any explicit reference, the name venom in this particular context, and its presentation, in combination with the aggressive snake imagery, gave the overall impression that the relatively high strength alcohol and high strength caffeine product, was being marketed mainly on the danger association with venom, and therefore required bravado to drink it. The Panel therefore concluded that the product breached Code rule 3.2(b).
In summary of the above, the Panel concluded that Dragon Soop Venom did breach Code rule 3.2(b), but did not breach Code rules 3.1, 3.2(a), 3.2(f), 3.2(h),3.2(j) or any other part of the Code.

Action by company:

To be confirmed.

Producer:

BuzzBallz LLC

Complaint:

‘‘Children may not make the association with alcoholic drinks (especially at 13.5%) in the same way that they will with the other ones that have more established cocktail names…At least put alcoholic cocktail on these products.

It looks like a toy, by design and how it is marketed. It is easy to put in a pocket or bag and not as noticeable as an alcoholic beverage as a bottle. The names appear to be childish with bright colours and it is marketed as something to play with – perfect for the pool and beaches. All are brightly coloured and there to attract young people.’’

Complainant:

Member of the Public

Decision:

Under Code paragraph 3.1

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

NOT UPHELD

Under Code paragraph 3.2(g)

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

NOT UPHELD

Under Code paragraph 3.2(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.

NOT UPHELD

The company’s submission

The company acknowledged that the Panel was not bound to restrict consideration of the products to the narrow terms of the complaint but explained that the focus of its response would be to address the complainants’ concerns.

The company stated that it was a responsible, innovative alcohol producer which sought from inception to comprehensively comply with all legal and industry requirements in multiple jurisdictions. Furthermore, the company maintained that when all evidence was considered, a breach of the Code had not occurred.

The company explained the name BuzzBallz, related to the nickname of the founder who had been a fast track and field athlete and would ‘buzz’ past competitors. The company clarified that ‘Ballz’ related to the round nature of the plastic container, which was inspired by a snowball candle, and designed to be a safe way for consumers to enjoy cocktails as opposed to traditional glassware. The company maintained that the innovative packaging shape was part of the brand identity and was marketed at those of a legal drinking age. Furthermore, the company highlighted that the brand had expanded globally from the US and had not received any other complaints about its products, of which it had sold over 5 million SKU’s.

The company explained that it was a member of the Distilled Spirits Council Of The United States (DISCUS) which administered a Code of Responsible Practices for Beverage Alcohol Advertising and Marketing that members were required to voluntarily abide by. The DISCUS Code had minimum requirements which were substantially similar to the Portman Group Code of Practice, and the company maintained it had complied with these requirements. This included DISCUS conducting a review of the company’s historic marketing which it found to be compliant.

Explaining the packaging of the drinks, the company confirmed the containers were made of plastic and were opened via a stay-on ring pull. The colour of the plastic was chosen to match the liquid colour and provided protection against UV deterioration. Where this was not aesthetically pleasing, a clear plastic was used. The company confirmed that no illustrations were used in the packaging design, and it included a maximum of two colours; the colour of the packaging and a contrasting colour for the text, all of which, were intended to appeal to adults.

The company stated that it marketed its products in the UK to an adult audience, through social media channels such as Facebook or Instagram. The company had chosen these channels because of their age-gating functions to ensure the adverts were targeted at an adult audience. Furthermore, the campaigns only used images of those who were, and looked as if they were, over 25 years old. Wider marketing of the products was conducted in licensed public houses where only those over 18 could purchase alcohol. The company highlighted its own UK website included age verification checks.

The company noted that there were a number of comparable drinks in the UK market.

The company understood that the Panel was the final arbiter of the Code of Practice. When preparing the response to the complaint the company had reviewed similar Panel decisions and Portman Group guidance which related to Code rules 3.1 and 3.2(h). The company highlighted several principles for each rule which resulted in previous cases being upheld by the Panel. The company sought to apply these principles to BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango to demonstrate compliance.

The company addressed the complaint under Code rule 3.1, and noted the complaint stated that under-18s would not recognise the drinks as alcoholic. The company explained the packaging contained numerous positive alcohol indicators which included:

• The ABV stated as ‘ALC. 13.5% VOL’ which was included twice on the packaging;
• The front of the packaging stated ‘Cocktail’ in large script to stand out from other text;
• Text on the back of the packaging included ‘mixed drink with alcohol’ and ingredients including vodka and tequila, and a ‘please drink responsibly’ message.

The company noted that cocktails were likely to be understood by UK consumers as denoting an alcoholic drink, which was consistent with the Panel’s decision regarding HappyDown in 2018. Furthermore, the text of all packaging was prominent and clearly legible with a minimum of two alcoholic descriptors visible from the front field of view, and a minimum of six on the back.

Addressing the novel shape and design of the containers, the company stated it did not believe this was enough to breach the Code.

Referring to a Panel decision regarding Celldrinks, which also had a novel packaging design, the company understood that such containers may need to work harder to communicate the alcoholic content. Furthermore, it noted novel containers for alcoholic drinks were not unusual in the UK market and the shape of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango was not similar to either alcoholic or non-alcoholic beverages. Thus, consumers would be unlikely to confuse it with a similar non-alcoholic counterpart.

The company confirmed that the packaging designs employed only a single bright colour and did not have a busy overall design. The ingredients such as strawberry, chili, mango and chocolate were used in both alcoholic and non-alcoholic drinks.

When considering the elements in isolation, or in combination, the company maintained there were not sufficient detractors to cause consumer confusion regarding the drinks’ alcoholic nature. As the packaging included numerous positive alcohol cues, and did not include imagery or illustrations, the company concluded the alcoholic nature of the drinks was communicated on the labels with absolute clarity.

The company then addressed the complainant’s concerns that BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango had particular appeal to under-18s, focusing on isolated elements and the overall impression of the packaging. The company reiterated that the drinks were marketed to an adult audience.

The company refuted the complainant’s assertation that the container was toylike. The company explained that the shape was round but included a flat bottom and top to serve as a receptable for liquid. It did not appear similar to any known children’s toy to the company’s knowledge and at most could be compared to a ball. The company maintained that balls had a variety of purposes and had broad appeal to children and adults.

The company noted the size of the container was consistent with other single serve products such as wine or other ready-to-drink alcoholic beverages. BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango contained 200ml of liquid which was required to comply with mandated standards of fill in the USA for distilled spirits. While the company agreed that the products could be easily transported in a bag or cooler, this was not an element which could have a particular appeal to children. Furthermore, while the packaging design and shape were novel, it was not reminiscent of a soft drink which was popular with children, therefore it was unlikely to have a particular appeal to under-18s.

The company explained that Strawberry ‘Rita was a shortening for strawberry margarita, Chili Mango was descriptive of the product and the flavour would likely appeal to adults The company also clarified that Choc Tease was intended to convey the indulgent creamy nature of the drink with chocolate having broad appeal to both children and adults.

While the packaging for the drinks did employ bright colours, the company stated it was adult in nature and included sharp stark uniform fonts, a limited colour palette and did not include multiple contrasting colours or childlike cartoons or illustrations. The company noted that two previous Panel decisions about HappyDown and Hoola Hooch clarified that inclusion of bright colours on packaging was not inherently a breach of the Code and would be considered broadly in the context of the overall impression of the label.

Finally, the company stated that the wider marketing of the drinks did not have particular appeal to under-18’s. The UK website included information that the product could be enjoyed at various locations. However, it did not suggest it could, or should, be used as a plaything but rather due to its plastic container, the drinks would be safe to enjoy where people were likely to be bare foot.

The Panel’s assessment

The Panel began by discussing whether any additional Code paragraphs should be considered. The Panel noted that the container utilised a novel design, was small, transportable and not easily resealed and agreed there was merit in discussing the three products under Code paragraph 3.2(g) to determine if the packaging encouraged rapid consumption. The Panel also agreed to discuss the products under Code paragraph 3.2(j) to determine whether the word ‘buzz’ suggested that the products could change a consumer’s mood or behaviour.

Code rule 3.1

The Panel discussed whether the packaging of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango communicated the alcoholic nature of the products with absolute clarity. The Panel noted that while the container itself was small and ball shaped, and not a typical alcoholic drink vessel, the packaging did include some positive alcohol cues to communicate the drinks alcoholic nature. The Panel noted that the packaging included the alcoholic strength by volume of 13.5% (ABV), a ‘drink responsibly’ message and the word ‘cocktail’. When reviewing the packaging, the Panel discussed whether the descriptor ‘cocktail’ was likely to be understood by consumers as an alcoholic signifier. When considering non-alcoholic versions of popular cocktails, the Panel acknowledged that they were commonly referred to as ‘non-alcoholic cocktails’ or ‘mocktails’ to distinguish them from ‘cocktails’. Therefore, the Panel determined that most consumers would likely interpret ‘cocktail’ as a reference to a drink containing alcohol.

The Panel discussed previous case precedents raised by the company and noted that novel containers sometimes did need to work harder to communicate the alcoholic nature of the contents to consumers. However, the Panel concluded that the packaging of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango did contain the minimum amount of information, including the product ABV and word ‘cocktails’, to communicate the drinks alcoholic nature with absolute clarity. Accordingly, the Panel did not uphold the complaint under Code paragraph 3.1. Whilst the Panel did not uphold the complaint under Code paragraph 3.1, it noted that the unusual, innovative, packaging style could do more at a best practice level to ensure that it was immediately obvious the product was alcoholic in nature and encouraged the company to review this.

Code rule 3.2(h)

The Panel discussed whether the packaging could have a particular appeal to under-18s. When considering the small size and shape of the containers, the Panel noted that they were reminiscent of balls used in games such as snooker, cricket or tennis. The Panel discussed BuzzBallz Strawberry ‘Rita and noted that the red shiny packaging was also similar to a Christmas bauble. When examining whether these elements could have particular appeal to under-18s, the Panel concluded that snooker, cricket, tennis and Christmas baubles were likely to have broad appeal across all age groups and that the similarity was passing, as opposed to identical.

The Panel noted that BuzzBallz Strawberry ‘Rita and BuzzBallz Chili and Mango both employed primary colours, red and yellow respectively. However, the Panel acknowledged that while the packaging was bright in colour, it did not contain contrasting colours with varying levels of luminance, sparkles or cartoon imagery which could create a cumulative effect that may particularly appeal to under-18s.

When considering these elements both in isolation, and in combination, the Panel concluded that there was nothing on the packaging, or in the product’s overall design, that was likely to have a particular appeal to under-18s. Accordingly, the complaint was not upheld under Code rule 3.2(h).

Code rule 3.2(g)

The Panel considered whether the packaging design could encourage a consumer to drink the product rapidly or ‘down’ it in one. The Panel discussed previous cases with novel packaging such as ‘test tube drinks’ and noted that such containers could not be resealed or set down, thus indirectly encouraging rapid consumption as the consumer was required to drink the product quickly and immediately. When considering BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango, the Panel noted that all three had flat bottoms which meant they could be easily set down. Alongside this, there were no elements on the packaging that suggested a consumer should either drink the product rapidly or ‘down’ it in one. Accordingly, BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango were not found in breach of Code paragraph 3.2(g).

Code rule 3.2(j)

Finally, the Panel reviewed the name ‘BuzzBallz’ and whether the word ‘buzz’ suggested that it could change a consumer’s mood or behaviour. The Panel acknowledged that the definition of ‘buzz’ referred to the slight intoxication from consuming alcohol or drugs and discussed whether there was a suggestion that the product could change a consumer’s mood or behaviour. The Panel considered that a ‘buzz’ could refer to being excited but in areas of the US and the UK was colloquially sometimes used to reference the feeling of being slightly intoxicated or ‘buzzed’. When reviewing the rest of the packaging, the Panel noted that there was nothing on the products’ which suggested the drink could change a consumer’s mood or behaviour or that consumption would generate a ‘buzz’. After much discussion, the Panel considered that ‘buzz’, in the specific context of the packaging, while close to the line of acceptability, did not breach the Code. The Panel advised that the company should be careful not to use the name ‘BuzzBallz’, either on the label or in wider marketing, in such a way that could suggest that the product could change a consumer’s mood or behaviour.

Accordingly, the Panel concluded that the packaging of BuzzBallz Choc Tease, BuzzBallz Strawberry ‘Rita and BuzzBallz Chili Mango did not breach Code rule 3.2(j) or any other part of the Code, and the complaint was not upheld.

Action by Company:

No action required.

Producer:

Cottage Delight Ltd

Complaint:

“The incidence of alcohol related harm in Scotland is rising sharply. In Aberdeenshire for example, the rate of alcohol-specific deaths has doubled in the last ten years. Responsible alcohol producers should not market products that promote drunkenness or binge drinking. We’d therefore wish to bring to Portman’s attention the “Piggin’ Drunk” product. We believe it is inappropriately named and labelled with the image of a partying intoxicated pig. By attributing this imagery to an alcoholic product, we believe the producer falls foul of Portman’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks rule 3.2f by depicting binge-drinking and drunkenness within the social context of a party or by celebrating drunkenness. Drinking the volume of a ‘piggin’, otherwise known as a wooden pail, implies immoderate consumption leading to drunkenness. In this day and age, one wonders how products such as this manage to slip through the Portman net and bring the alcohol industry into disrepute.”

Complainant:

Aberdeenshire Alcohol & Drug Partnership

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

The company’s submission:

The company stated that it was a socially responsible company and that it would not knowingly place a product on the market that promoted any form of drunken behaviour or binge drinking.

The company explained that it had read the Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks and agreed with the Chair’s initial view that the case was not a clear-cut breach of Code rule 3.2(f). However, the company welcomed the Panel’s consideration of the product to determine whether it complied with the Code.

The company stated that it had sold beers for over ten years and that the range had always featured humorous titles and images. The company explained that the majority of consumers who bought the products did so as gifts.

The company explained that when it had originally designed the label for Piggin’ Drunk Ale, it had been intended to feature in a three-bottle pack that had an animal theme. The company stated that it was unaware that the word ‘Piggin’ was also a name for a wooden pail, and that it was only selected based on the farm animal. Having considered the information contained within the complaint from the Aberdeenshire Alcohol & Drug Partnership, and after discussion within its leadership team, the company confirmed that it had made the decision to discontinue the product once current stock had been sold.

The Panel’s assessment:

Code Rule 3.2(f)

The Panel first considered whether the product breached Code rule 3.2(f). The Panel discussed the word ‘piggin’ and the connotations of the word. The Panel noted the complainant’s concerns that the word ‘piggin’ related to a wooden pail and encouraged a consumer to drink the volume of a ‘piggin’, thereby creating an association with immoderate consumption. The Panel discussed the average consumer perception of the word and considered that, in modern parlance, most consumers would consider that ‘pigging out’ meant that one had consumed something in an excessive way or overindulged. The Panel therefore considered that the name ‘Piggin’, juxtaposed with ‘Drunk Ale’, intensified the meaning and concluded that ‘piggin’ was being used to denote ‘very drunk’ in this context, creating an association with immoderate consumption and binge-drinking. The Panel also noted the phrase on the side of the bottle which read “this little piggy is hogging all the beer” and considered that this, in conjunction with the name ‘Piggin’ Drunk’, also encouraged immoderate consumption of alcohol.

The Panel considered the word ‘drunk’ which featured alongside ‘piggin’ on the front of the product. The Panel expressed significant concern regarding an alcoholic product that incorporated the word ‘drunk’ in its name and explicitly created a link to excessive consumption of alcohol. The Panel therefore considered that the incorporation of the word ‘drunk’ was also a clear-cut breach of Code rule 3.2(f).

The Panel then discussed the image of the illustrated pig on the front label and considered that it looked inebriated as it was depicted with cross eyes whilst lying back and spilling the beer it was holding, creating a direct link between alcohol consumption and drunkenness. The Panel therefore concluded that the illustrated, inebriated pig encouraged immoderate consumption of alcohol and that this was further exacerbated by the product name ‘Piggin Drunk’ and subsequently breached Code rule 3.2(f).

Code Rule 3.2(h)

The Panel then considered whether the product had a particular appeal to under-18s. The Panel noted that the product was originally sold in a pack with two other beers, and that the producer had provided an image of this design in its formal response. The Panel acknowledged that the two other products could not be considered as they were not subject to complaint and that its consideration could only be in relation to Piggin’ Drunk Ale.

The Panel noted that the pig was depicted in an illustrated style, which could potentially appeal to under-18s. However, the Panel considered that the colour palette was a muted design, and that the illustration of the pig did not appear particularly childish in its presentation and that it was unlikely to have a particular appeal to under-18s. The Panel also noted that there were no other cues or elements on the rest of the packaging that had a particular appeal to under-18s. Accordingly, the Panel concluded that the product did not breach Code rule 3.2(h).

Finally, the Panel welcomed the company’s decision to discontinue the product and encouraged the company to engage with the Portman Group’s free Advisory Service regarding any future designs.

Action by company

Product has been discontinued by the company.