Producer:
MixPixie
Complaint:
“I am contacting you about a worrying product which came up in an advert on my Facebook feed a few weeks ago and is still on sale.
https://www.notonthehighstreet.com/mixpixie/product/personalised-medicine-style-flavoured-gin?fbclid=IwAR0VlCi2AVLDtuxn7Mp5XsmdT84199wXBrJcjAFIhUnFdAvfh-bSF3pDV9g
My concern is that it just seems very wrong to make alcohol (or anything else!) resemble prescribed medication. And the suggestions on the labels to take alcohol when stressed and before each exam, completely against all the “responsible drinking” recommendations.
It also goes against Section 3.3 of the Portman Group’s rules, as found online (6th ed.):
“A drink, its packaging and any promotional material or activity should not in any direct or indirect way:
3.3 suggest that the product has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour.”
I also suspect there may well be legislation about using prescribed medication as a packaging for anything that is not actual prescribed medication.”
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(b)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour.
NOT UPHELD
Under Code paragraph 3.2(f)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness.
UPHELD
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s.
NOT UPHELD
Under Code paragraph 3.2(j)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that the product has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour.
UPHELD
The company’s submission:
The company opened by stating that it appreciated the complainant’s misunderstandings, but that it disputed the points raised and wished to respond to the concerns.
The company addressed the concern raised by the complainant that one of the bottles featured on its website included the front label text ‘take one swig before each exam. Good luck!’. The company explained that the product was personalised and that this particular product had been ordered by a customer. The company explained that when a customer bought the product, they had to confirm that they were over 18 years of age. Additionally, the company pointed out that when Royal Mail delivered its products, they could not hand it to anyone under-18. The company then stated that the complainant had presumed that this particular bottle was for a young person doing exams, but that in reality, it was most likely that this order was for a mature student.
The company stated that to resolve this particular issue with the complaint, it had removed this photo from its product page.
The company then addressed the complainant’s concern that the product breached Code rules 3.2(f) and 3.2(j) and that it used a prescription medication label for the packaging. The company explained that nowhere on the label or in the promotional material did the product suggest any of these things and that the complainant had appeared to misunderstand the premise behind the label. The company reiterated that the product was personalised in its entirety and that customers had to fill out three aspects to personalise it: the ‘Patient name’ (i.e. the recipient’s name); ‘Dosage’ (i.e. birthday wishes); and ‘Authorised by’ (i.e. the customer’s name.) The company explained that when a customer added the product to their basket, they were asked to tick a checkbox which stated, “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS HUMOURED GIN. PLEASE DRINK RESPONSIBLY.”
The company stated that it did not accept that the product encouraged illegal, irresponsible, or immoderate consumption of alcohol. The company pointed out that in a similar way to other personalised alcoholic drinks on the market, it could not control what a customer included in the personalised text sections. However, the company stated that it took its alcohol licenses, and the responsibilities that they brought, very seriously, and if there were rare occasions where it felt that the personalised text was not appropriate then it would contact the customer to request they change it, or refund the order.
The company stated that to resolve the issues raised by the complainant, it had now added the text, “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS A HUMOURED GIN. PLEASE DRINK RESPONSIBLY.” as a checkbox which the customer had to check to be able to place the order and to the labels on the bottles, to ensure that both the purchaser and recipient of the gin could not be mistaken that the product was a real prescription. The company stated that it believed it was already very clear that the product was not a real prescription and that it had never received any complaints or queries from customers along the lines of what the complainant had suggested.
In response to the concern that the product breached Code rule 3.2(h), the company stated that it took its alcohol licences very seriously and that it found the suggestion it had broken this particular rule disappointing. The company provided a list of other companies selling alcoholic drinks with sparkles in. The company stated that it did not see how prescription gin which contained sparkles was any different to the products it had highlighted.
The company highlighted that the product clearly stated, “This product contains alcohol. By purchasing this product, you confirm that you are 18 years of age or over.”
Additionally, the company reiterated that its products were delivered through Royal Mail, who were required to check the age of the recipient before handing over the parcel, to ensure that they were over 18. Lastly, the company stated that it did not believe that the price of the product had an appeal to teenagers in any way. The company highlighted that the smallest bottles were £18 plus postage and packaging for 200ml. The company pointed out that most supermarkets sold gin in 70cl bottles.
In response to the Panel’s provisional decision, the company stated that it was its view that Code rules 3.2(f) and 3.2(j) had not been broken. The company reiterated that after being made aware of the complaint, the image featuring the ‘exams’ example had been taken off the website. Additionally, the text “POSSIBLE SIDE EFFECTS: MAY INCLUDE EXTREME RELAXATION, GIDDINESS AND HAPPINESS” had been replaced with “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS A HUMOURED GIN. PLEASE DRINK RESPONSIBLY.”
The company explained that it took its alcohol licence very seriously and that it had met with Trading Standards to ensure that no laws or rules had been breached with the product. The company stated that Trading Standards had approved the changes and that it was also waiting to hear from the Advertising Standards Authority to confirm compliance before any further changes were made to the product.
The Panel’s assessment:
The Panel began discussion by noting the customisable element of the product subject to complaint and discussed remit application. The Panel acknowledged that it could only assess the product subject to the actual complaint and that it was unable to assess hypothetical personalised elements that each product purchased could include. However, the Panel noted that while the product design enabled each one to be personalised, the production of the final label and packaging was fundamentally still within the control of the producer. The Panel discussed the producer’s formal response to the complaint and noted that the producer had stated that it could not be held responsible for what a customer chose to include but that it had the ability to ‘vet’ what had been written before sending the label to be printed and could contact the customer to change it or issue a refund if the proposed text was inappropriate for an alcoholic product. The Panel sought to remind the producer that it did have responsibility for the entirety of the product, including the customisable element, as ultimately the producer could regulate the customisable content. The Panel noted that once the producer chose to incorporate the customer’s personalisation on the product, the product in its entirety became the responsibility of the producer as it had willingly, and knowingly, printed the label onto its branded product.
Code rule 3.1
The Panel considered whether the product communicated its alcoholic nature with absolute clarity. The Panel noted that the bottle referenced gin six times and that the label also stated the alcoholic strength of the product at ‘18% vol’[1]. The Panel then considered the word ‘prescription’ in relation to ‘gin’ on the front of the bottle. The Panel discussed whether the word ‘prescription’ could cause consumer confusion if an individual considered that the product was a prescription drink, as opposed to an alcoholic drink. The Panel also considered that the dark colour of the liquid looked like a medicinal liquid, rather than a gin. In addition to this, the Panel noted that the product did not include any best practice alcohol health-related information such as the product’s unit content, a pregnancy warning or the Chief Medical Officers’ Low Risk Drinking Guidelines but acknowledged that this was not a Code requirement. The Panel discussed Portman Group guidance under rule 3.1 which stated that it was reasonable to expect a consumer to pick a product up and assess it in its entirety. The Panel therefore considered that whilst the prescription element of the product could cause confusion at first glance, the inclusion of the product’s ABV and six clear references to gin were sufficient for a consumer to conclude that the product was alcoholic. Accordingly, the Panel found that the product met the minimum requirement to communicate its alcoholic nature with absolute clarity and did not breach rule 3.1.
Code rule 3.2(f)
The Panel then discussed whether the product encouraged irresponsible, immoderate or illegal consumption of alcohol. The Panel considered the standard wording of ‘dosage’ on the product and the additional customisable element alongside this which read, “Take ONE swig before each exam. GOOD LUCK!” The Panel expressed concern about encouraging anyone to drink before an exam given the potential effect and impairment it could have on the outcome of an assessment. The Panel also considered the word ‘swig’ in relation to a measurement of alcohol and noted that due to its imprecise nature this could result in varying levels of alcohol consumption. The Panel also noted that an ‘exam’ could encapsulate practical tests, whether this be a driving test, an exam involving heavy machinery or even a practical medical exam. The Panel therefore considered that the encouragement of alcohol consumption before an exam created a direct association with irresponsible consumption.
The Panel considered the design of the bottle and discussed the shape of the bottle and the name ‘prescription gin’ which resembled a prescription medicine bottle. The Panel noted that the green cross displayed on the front of the bottle was an exact replica of a pharmacy cross in the UK which also appeared on most prescription medication. The Panel considered that it was irresponsible to imply that an alcoholic drink was something to be prescribed and constituted an ‘order to drink’ in order to make an individual feel ‘better’ which also created a link with irresponsible consumption.
The Panel also noted that the front label included the warning ‘possible side effects’ one of which was ‘giddiness.’ The Panel acknowledged that the paragraph was followed by the phrase ‘Please drink responsibly’ but considered that this did not offset the overall impression conveyed by the product. The Panel noted that if a consumer experienced ‘giddiness’ then it implied that a certain amount of alcohol had been consumed to have an intoxicating effect. The Panel therefore concluded that the product also encouraged immoderate consumption of alcohol. Taking the above points into account, the Panel concluded that the product breached rule 3.2(f) as it encouraged irresponsible and immoderate consumption.
Code rule 3.2(j)
The Panel then discussed whether the product suggested that it had therapeutic qualities, could enhance mental or physical capabilities, or change mood or behaviour. The Panel considered that the product was deliberately, and overtly, designed to look like a prescription medicine and that such medicines were synonymous with being used to cure and relieve physical and/or mental ailments. The Panel reiterated the points made during discussion under other Code rules and noted the usage of the exact replica of a pharmacy cross, small medicinal bottle shape and medicinal liquid colour which, when combined, suggested that the product had therapeutic qualities. The Panel also noted that the front of the bottle stated, “POSSIBLE SIDE EFFECTS: MAY INCLUDE EXTREME RELAXATION, GIDDINESS AND HAPPINESS.” The Panel considered that this directly suggested that the product could help a consumer to relax and that it would also result in happiness after consumption. The Panel considered that these phrases also suggested that the product had a therapeutic effect and that it could change someone’s mood. The Panel therefore concluded that the product breached rule 3.2(j).
Code rule 3.2(b)
The Panel then discussed whether the product created an association with dangerous behaviour because of its similarity to prescription medication which could lead to dangerous consumption of alcohol. The Panel discussed the point that it was irresponsible to encourage an individual to drink before any kind of exam as it could lead to dangerous behaviour, particularly in a practical exam. Additionally, the Panel reiterated its earlier point that prescribing alcohol, and therefore ‘ordering’ someone to drink under the pretence that it was good for them, could also lead to dangerous consumption. However, after in-depth discussion, the Panel considered that these points were more accurately captured by the ‘irresponsible consumption’ aspect of rule 3.2(f) and did not necessarily create an association with dangerous behaviour. The Panel therefore concluded that the product did not breach 3.2(b).
Code rule 3.2(h)
The Chair explained that during the Informal Resolution process she had noted that the bottle was 200ml and contained sparkles. The Chair explained that as part of the Informal Resolution review she had raised rule 3.2(h) for consideration as it was her view that the product could appear toy-like and therefore warranted further discussion as to whether it had a particular appeal to under-18s.
The Panel noted the producer’s formal response which explained that the product was delivered via Royal Mail and that the product would not be delivered to a person who the postal worker deemed to be under-18. However, the Panel agreed that this was not a factor that could form part of its considerations as its review focused on the naming, packaging and promotion of the product which could still end up in a home environment and be seen by anyone. The Panel also noted that a product could still have a particular appeal to under-18s, even if all delivery safeguards had been utilised, because the decision was fundamentally about the overall impression conveyed by the product’s name, packaging and promotion.
The Panel then discussed the sparkles and noted that they were a similar colour to the liquid, which made it difficult to easily distinguish them. The Panel also noted that given the large size of the sparkles, they fell to the bottom of the bottle quite quickly and did not stay afloat for very long once shaken. The Panel discussed recent precedent of similar products that also incorporated ‘sparkles’, such as the Marks and Spencer Snow Globe Gins, and noted that sparkles alone were not necessarily problematic under the Code. The Panel then examined the rest of the bottle and noted that the sparkles were not the dominant feature of the product. The Panel also noted that there was nothing further on the packaging which could create a particular appeal to under-18s such as childish imagery, sweet flavours, contrast colours or childish font. The Panel then considered the 200ml size of the bottle in combination with the sparkle element. The Panel considered that the bottle shape was designed to appear like an old-fashioned medicine bottle and that this would be unlikely to resonate with under-18s as it did not appear particularly toy-like. The Panel therefore concluded that the product did not breach rule 3.2(h).
The Panel discussed the company’s response to the provisional decision. The Panel noted that the company had taken steps to address the complaint by removing the image of the product that was subject to complaint off the Not on the High Street website and that the ‘side effects’ text on each product had been changed to: “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS HUMOURED GIN. PLEASE DRINK RESPONSIBLY.” However, the Panel noted that its consideration was against the product version subject to complaint and not the amended product. The Panel welcomed the company’s response to engage with the complaints process and its efforts to amend the product. However, after discussion, the Panel also noted that the producer had not provided an image of the new product or any new evidence or additional reasoning to change the Panel’s provisional upheld decision that the product breached Code rules 3.2(f) and 3.2(j).
Finally, the Panel noted that the company had met with Trading Standards to discuss the product but that no evidence of the meeting or correspondence had been shared with the Panel. The Panel also noted that Trading Standards advice would have related to compliance with applicable laws and would not have related to the Portman Group’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks which fell outside of Trading Standards remit. The Panel reiterated that the Code sat alongside the law and that its rules were to be adhered to in addition to legal requirements.
In summary of the above, the Panel concluded that the product breached Code rules 3.2(f) and 3.2(j). The Panel also concluded that the product did not breach Code rules 3.1, 3.2(b), 3.2(h) or any other part of the Code.
Action by company:
To be confirmed.
[1] The Panel noted that it was not within its remit to consider whether the product was misleading.
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 (NIADA)
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.
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.
NOT UPHELD
The company’s submission:
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 different 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 stated 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 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 all Dragon Soop products, 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 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 commented 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 cases 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. The Panel agreed to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Red Kola, Dragon Soop Rhubarb & Custard, Dragon Soop Sour Apple, Dragon Soop Tropical Fruit Punch, and Dragon Soop Apple & Blackcurrant concurrently given the similarities in product packaging and requested that the written decision distinguish points in difference of flavour and colour palette where necessary.
Whilst the discussion would focus on Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Red Kola, Dragon Soop Rhubarb & Custard, Dragon Soop Sour Apple, Dragon Soop Tropical Fruit Punch, and Dragon Soop Apple & Blackcurrant, 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 aforementioned 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 cases 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 mean that the products were therefore problematic, but rather that they 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.
The Panel then moved on to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola against Code rule 3.1. The Panel noted that on all of the products listed, 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 each can. The Panel also noted that the ABV was displayed prominently on the front of each can and repeated around the base, and that this was set against a black background which made it clear to consumers that the products contained alcohol. The Panel then considered the back of each 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 products under rule 3.1, the Panel concluded that the positive alcohol cues on Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola clearly communicated the alcoholic nature with absolute clarity and found that the products did not breach rule 3.1.
The Panel then moved on to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola against Code rule 3.2(a). The Panel noted that each product repeated the ABV ‘7.5% vol’ on the front of the can, around the base and that it was repeated on the back. The Panel also noted that the strength of each 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 products’ alcoholic strength had been conveyed in a factual and proportionate way and noted that there was nothing on the cans that placed undue emphasis on the products’ higher alcoholic strength or intoxicating effect. The Panel therefore concluded that Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola did not breach rule 3.2(a).
The Panel then moved on to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola against Code rule 3.2(b). The Panel examined the dragon on the front of the cans. The Panel acknowledged that there might be instances where dragons were used in popular culture to suggest danger and noted that the cans featured claw marks on the front. 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 therefore concluded that the products did not go far enough to suggest an association with aggressive behaviour and therefore found Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola did not breach rule 3.2(b).
The Panel then moved on to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola against Code rule 3.2(f). The Panel noted that the products 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 products contained a responsible drinking message and a link to the Drinkaware website. The Panel then considered the overall impression conveyed by the products and noted that there was nothing else on the packaging 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 products’ 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 Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola did not breach rule 3.2(f).
The Panel then turned to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola against Code rule 3.2(h). The Panel considered that the colour scheme on each product was different to the Strawberry and Lime 2015 precedent but noted that the colours in the listed flavour variants were muted and directly related to the flavour of the individual product. 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 products still included a simple line drawing, were mature in design, were not childlike and would be unlikely to have a particular appeal to under-18s. The Panel also considered the font of ‘Dragon Soop’ on the front of each can and noted it was set against a busy design that was unlikely to have a particular appeal to under-18s.
The Panel then considered specific flavour variants that it believed warranted further discussion, as the Panel considered that some flavour variants carried additional connotations that had not been captured in the Strawberry and Lime 2015 precedent or discussion so far.
The Panel considered Dragon Soop Rhubarb and Custard and noted that the flavour was based on a traditional sweet and that the colour scheme of the pastel pink and yellow closely resembled these sweets. The Panel considered that there was a risk that this could have an appeal to under-18s. The Panel discussed a previous complaint case about Mr Gladstone’s Curious Emporium Range from 2017 which had a rhubarb and custard flavour. The Panel noted that the decision reflected that rhubarb and custard had a wide appeal and was not particularly appealing to under-18s. The Panel also noted that the decision noted a difference between using a sweet name as a flavour and marketing a drink in the context of sweets which Dragon Soop did not do. When considering the Dragon Soop Rhubarb and Custard flavour, the Panel concluded that the flavour had wide appeal and did not have a particular appeal to under-18s.
The Panel then considered Dragon Soop Red Kola further under rule 3.2(h). The Panel noted that the name Red Kola sounded similar to the retro sweet ‘Cola Cubes’. However, the Panel considered that any reference to the sweet name was purely incidental, but that even if there was a link, the Panel concluded that ‘cola cubes’ as a flavour had a wide appeal and did not appeal particularly to under-18s.
In summary, the Panel noted that while the products may have a broad appeal, they did not have a particular appeal to under-18s. The Panel therefore concluded that Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola did not breach rule 3.2(h).
The Panel then moved on to discuss Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola 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 products contained a high amount of caffeine, and that the caffeinated nature of the products was repeated around the top of each can, and above the Dragon Soop brand name on the front. The Panel noted that on the front of each can text stated that it contained ‘caffeine, taurine, and guarana’ and that the back of each can stated that it was ‘not suitable for children, pregnant women or persons sensitive to caffeine’. However, the Panel considered that the products 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 products and noted the producer’s response which highlighted that each product 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 each 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 products 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 products tasted different to other drinks on the market and did not market the products based on any potential therapeutic or mood or behaviour changing capabilities or benefits. The Panel therefore concluded that Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola did not breach rule 3.2(j).
In summary of the above, the Panel therefore concluded that Dragon Soop Dark Fruit Punch, Dragon Soop Blue Raspberry, Dragon Soop Mango Pink Lemonade, Dragon Soop Passion Fruit & Orange, Dragon Soop Peach & Raspberry, Dragon Soop Sour Apple, Dragon Soop Apple & Blackcurrant, Dragon Soop Rhubarb & Custard, Dragon Soop Tropical Fruit Punch and Dragon Soop Red Kola did not breach Code rules 3.1, 3.2(a), 3.2(b), 3.2(f), 3.2(h), 3.2(j) or any other part of the Code.
Action by company:
None required.
Producer:
Corinthian Brands (CBL) Ltd
Complaint One:
“Dragon Soop. For the love of god why have you not banned this when I’m seeing literal reports of people putting it in their children’s lunchboxes thinking it’s an energy drink. Most recent case in point pictured below. If I receive no valid response your organisation will reveal itself as nothing more than a shill to big beer. Specifically the branding is very akin to energy drinks readily available. The name, colours and even flavours, albeit likely fake, seem to be designed to be particularly eye catching to teenagers.”
Complainant One:
Member of the public
Complaint Two:
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 Two:
Northern Ireland Alcohol and Drugs Alliance (NIADA)
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.
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.
NOT UPHELD
The company’s submission for complaint one:
The company began by outlining the background to the case. The company explained that a Dragon Soop product had already been considered by the Independent Complaints Panel (Panel) in 2015 and it was found that the product did not encourage illegal, irresponsible or immoderate consumption, nor did it have a particular appeal to under-18s and was therefore not upheld under Code rules 3.2(f) and 3.2(h.) The company pointed out that the previous Chair had confirmed there was not a breach of the Code and that “the decision is final.” The company pointed out that in the previous 2015 case, the Panel would have also had the opportunity to evaluate the case against any provision in the Code, but that it was not found to breach any other part of the Code.
The company explained that it worked hard to be fully compliant with the Codes of Practice in all packaging and design decisions which had resulted in the reduction of ABV of the Dragon Soop 500ml and the strengthening of clarity of the product’s alcoholic nature in line with current Portman Group advice. The company stated that the packaging of the present Dragon Soop 500ml cans were more compliant with the Codes of Practice than in 2015. The company also stated that it was its belief that the Dragon Soop Wicked Watermelon case was essentially the same product as the Dragon Soop Strawberry and Lime product, which was investigated in 2015 but exonerated against the full Code. While the company did not believe that the case should proceed it stated that it responded to the complaint in the spirit of cooperation.
The company noted that the complaint was due in part to a news article from October 2021 about a 23-year-old man who found a can of Dragon Soop in his lunchbox which his mother had packed. The company pointed out that in the article, the man had stated “I was tempted to drink on the job, but I decided I didn’t fancy getting sacked.” The company highlighted that it was clear that the man was fully aware of the alcoholic nature of the product. The company also highlighted that the article explained that the man’s mother was ‘half-asleep’ when she handed him his lunchbox, which accounted for her not having read the multiple messages about the alcoholic nature of the product.
The company then addressed the specific clauses in the Code the complaint could be considered under; namely rules 3.1, 3.2(h) and 3.2(j) of the Code.
In response to rule 3.1, the company explained that since 2015, it had reviewed the presentation of the entire Dragon Soop brand in a thoughtful, forward looking and responsible ethos to ensure it was in line with the Code of Practice. The company stated that the designer of the product range had years of experience designing drinks brands which appealed specifically to over-18s. The company also explained that the designer had been given a strict brief to further strengthen the message that Dragon Soop was alcoholic, suitable only for adults and did not in any way suggest that the product might enhance mental or physical capabilities, or change mood or behaviour.
The company highlighted that there should not be any confusion between the product and an energy drink because at no point on the packaging did it use the word ‘caffeinated’ without the word ‘alcoholic’ immediately following it. The company also pointed out that the word ‘alcoholic’ was repeated three times on the neck rim and repeated on the main body of the can in larger and bolder text. The words ‘fermented malt beverage’ were also featured. The company also explained that the 7.5% ABV of the product was repeated five times around the base of the can and that this was also prominently displayed on the main body of the can as part of the brand logo. Additionally, the ABV was repeated on the back next to 500ml. The company stated that the Drinkaware logo was also featured prominently, and that this would not appear on a soft drink or energy drink brand, and that the product featured a responsible drinking message.
The company then compared Dragon Soop Wicked Watermelon to another alcoholic RTD product to demonstrate that Dragon Soop clearly communicated its alcoholic nature with absolute clarity.
The company added that the word ‘alcoholic’ or the ABV was featured in 11 different areas on the packaging and did not use the word ‘energy’ anywhere on its packaging.
The company stated that Dragon Soop had been launched in 2010 and that in the intervening 12 years, there had only been two complaints – the first which was not considered a breach of the Code in 2015 and the current complaint. The company highlighted this was remarkably few complaints for a brand that sold 13.6 million cans a year.
In response to rule 3.2(h), the company repeated that Wicked Watermelon was more scrupulous in its adherence to the Code than the Strawberry and Lime product which was considered by the Panel in 2015.
The company stated that it recognised that while each element is important, the overall impression conveyed by a product was key to avoid direct or indirect particular appeal to under-18s. The company said that in comparison to many RTD and hard seltzers, the packaging of Dragon Soop clearly and unambiguously signalled its alcoholic status and that this was not just due to the references to its ABV but also included the visual cues and its overall effect.
The company noted that the Panel had defined specific cues as having possible particular appeal to under-18s and that this included “bright, high contrasting colours” as an example. The company then provided examples of alcoholic products that had colour schemes that could be classed in this way. In comparison, the company stated that Dragon Soop cans were specifically designed not to be garish or particularly bright and that the different colours in the Dragon Soop range were used to denote different flavours within the range, as was common practice with flavoured alcoholic beverages.
The company explained that the packaging did not contain any negative cues that would suggest the product was non-alcoholic and highlighted the absence of childish imagery, childish fonts and that while there was a reference to fruit flavours, the packaging did not contain fruit imagery which might suggest that it was a fruit drink rather than a fruit-flavoured alcoholic drink. The company highlighted a number of other fruit-flavoured alcoholic beverages as a comparison to demonstrate fruit imagery on alcohol packaging.
The company then explained that the price of the product at £2.99 indicated it was a premium alcoholic drink and that the cost per unit of alcohol would actively discourage under-age drinkers. The company stated that in comparison, energy drinks such as Red Bull and Monster Monarch Juiced energy drinks sold for considerably less (£1.35 and £1.59 respectively.)
In response to whether the product was in breach of rule 3.2(j), the company highlighted that the Code Secretariat had not provided any evidence to suggest the product was in breach of the rule. However, as it had been mentioned in correspondence, the company stated it would provide a response.
The company pointed out that the product made it clear that it contained caffeine for informative reasons and that to not include it would constitute negligence and a breach of trading standards rules. The company also highlighted that the word ‘caffeinated’ always proceeded the word ‘alcoholic’ on the labelling, apart from on the back where it warned consumers who may be sensitive to caffeine.
Lastly, the company explained that whether on the packaging, in press releases, on social media or at events, extreme care was taken to ensure that there was clear unambiguous messaging which did not suggest that the product had therapeutic qualities, could enhance mental or physical capabilities or change mood or behaviour. The company stated that social media platforms for the brand were monitored constantly and that any post that contravened rule 3.2(j) of the Code was removed as a matter of policy.
The company then addressed newspaper articles the Code Secretariat had provided as context for the case proceeding. The company referenced an email the Code Secretariat had sent where it explained that the Panel members may choose to “conduct their own research, whether there could be any changed circumstances to be considered compared to the Strawberry and Lime 2015 case.” The producer also referenced an email from the Code Secretariat where it referred to there having been a number of issues which had not appeared before the Panel in 2015 which included issues raised by the new complainant and various commentators and the media since 2015.
The company stated it was of questionable value to use newspaper articles to judge changes in societal beliefs and behaviours. The company noted that alcohol-fuelled crime, violence or abuse was often more likely to be the result of a drinker who had over-indulged or abused alcohol and that it was often more to do with poverty, hopelessness, lack of education and social disadvantage that caused it, rather than the specific alcohol product’s packaging. The company stated that any search of press coverage would provide ‘evidence’ to demonstrate that any alcoholic drinks brand or alcoholic drink type could be negatively connected with crime or violence when it was abused, over-indulged in, or wrongly mixed with other types of alcohol. The company provided three newspaper articles to illustrate this point. These were: “Plumber downs shots in wild pub bender but Jägermeister-fuelled night has horrific ending”, published in The Mirror, 16 December 2017; “Drunk brothers beat man to death after a night drinking vodka turned violent”, published in The Star, 30 June 2021; and “These Jesmond boys will only let you into their house parties if you complete a rum challenge (only for the strongest stomachs)”, published in The Tab in 2018.
The company then turned to the articles referenced by the Code Secretariat in correspondence. The company highlighted that the articles did not show the product breaching the Codes of Practice and only made an association with the product. The company said that whilst it was not desirable, the articles illustrated the many examples that could be found from many alcohol brands in a cursory internet search. With regard to the Circle Scotland article, the company stated that it showed old Dragon Soop packaging which was reviewed by the Panel in 2015 and also showed the old ABV.
In response to The Sun article, the company stated it also showed old packaging which was reviewed by the Panel. The company noted that the incidents in the article regarding criminal behaviour occurred after Dragon Soop was drunk with vodka or MD 20/20, which had never been recommended or condoned by the company.
With regard to the Daily Record article, the company stated that the crime referenced in the article was very serious, but that it was after the woman had received a custodial sentence. The company stated that Dragon Soop had no connection with the crime which she was convicted of. The company also mentioned that the article featured Dragon Soop with the old packaging that was examined by the Panel in 2015 and found not in breach, and that it showed the old ABV on the product.
In response to the Mirror article, the company stated that the article showed the product with the old ABV.
The company then said that it was assured the Panel would consider the product in combination with all the visual cues on the can and its many references to the alcoholic nature of the product. The company stated that there were some alcoholic products on the market that did not compare favourably with Dragon Soop, as certain products did not have the combination of the brand name, strong visual cues and the repeat references to the alcoholic nature which Dragon Soop had.
The company reiterated that use of the word ‘caffeine’ was for consumer information and that it was not, nor would ever be, used as a marketing device to sell Dragon Soop.
The company then highlighted that the common practice of on-trade and informal self-mixing of alcoholic drinks with high caffeine drinks often resulted in a drink far higher in alcohol than that of Dragon Soop, which made both the alcohol and caffeine content clear to consumers. The company explained that in a Dragon Soop 500ml can, it had an ABV of 7.5% and contained 35mg per 100ml of caffeine. In comparison, Red Bull, which was often mixed with vodka at 37.5% ABV, contained 32mg of caffeine per 100ml. Additionally the company explained that Coca Cola contained 34mg of caffeine in a 12 ounce can which was also often mixed with vodka at an ABV of 37.5%. The company stated that there were some recipes for an Irish cream liqueur, where coffee was added, which had a higher caffeine and alcohol content than Dragon Soop.
In its final section of response, the company then reviewed the reasons referenced by the Panel Chair as to why the 2015 Strawberry and Lime precedent did not prevent the Wicked Watermelon Dragon Soop complaint from proceeding as the case involved significantly changed circumstances and related to different packaging.
In response to the first point, that the previous case was heard six years ago and so enough time had passed to be considered again, the company stated that it was written in the Code that the final decision was final and that it should not depend upon a lapse of time.
With regards to the second point that there were ‘potential changes in societal perceptions’, the company highlighted that societal perceptions had not changed in a detrimental way that would justify revisiting a case that was previously not upheld. The company stated that research by the Portman Group showed that under-age drinking was on a consistent downward trend, which suggested that people received and understood clear messages from drinks manufacturers such as their own.
In response to the third point that the composition of the Panel had changed, the company stated that it indicated that the Chair felt there was an issue with the 2015 Panel or that the Panel would keep revisiting complaints of the same nature until it reached a different outcome.
For the fourth reason provided by the Chair, that the previous case was considered under the Fifth Edition of the Code and that this case was being considered under the Sixth Edition, the company stated that the wording of Code rule 3.2(h) had not changed between editions.
In response to the last point raised by the Chair that the product in this complaint was a different flavour and used a different colour palette, the company stated that the only thing that had changed fundamentally about the product since 2015 was the reduction of the ABV from 8% to 7.5% in all Dragon Soop products. The company also stated that regardless of the colour or flavour, its compliance with the Code was demonstrably at least as high as it was in 2015, but that great effort had been made since 2015 to ensure compliance with both the spirit and the letter of the Code.
In the company’s concluding remarks, it stated that companies, whether they were members or Code Signatories should be able to ensure that a ‘final’ decision was final.
The company repeated that the ‘significantly changed circumstances’ that the Chair had referred to were improved circumstances in terms of the Portman Group’s goal of reducing harm from alcohol. The company stated that societal perceptions had markedly improved and that the company had contributed to that with its further improved packaging, clearer messaging, strong visual cues and reduced ABV.
The company stated that having cooperated fully with the process it would be treated fairly and that the final decision this time would be final. The company reiterated that brand owners and businesses needed certainty because if they were subject to complaints of the same nature on more than one occasion then it would be impossible to make business planning and investment decisions.
The company’s submission for complaint two:
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 Wicked Watermelon, 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 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 Wicked Watermelon 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 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.
The Panel then turned to discuss Dragon Soop Wicked Watermelon 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 Wicked Watermelon product clearly communicated its alcoholic nature with absolute clarity and found that it did not breach rule 3.1.
The Panel then moved on to discuss Dragon Soop Wicked Watermelon 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 Wicked Watermelon did not breach rule 3.2(a).
The Panel then moved on to discuss Dragon Soop Wicked Watermelon 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 unlike the majority of the Dragon Soop range, and the 2015 Strawberry and Lime precedent, which focused solely on a flavour, the watermelon variant differed further in that it also incorporated the word ‘wicked’ with devil’s horns forming part of the ‘c’ before the word watermelon. Whilst the Panel noted that this added a new dimension to the product, it considered that the word ‘wicked’ and its depiction did not go far enough to suggest that the product would make a consumer ‘wicked’ or that a consumer needed to be ‘wicked’ to consume the product under the bravado aspect of rule 3.2(b). The Panel also noted that the ‘wicked’ reference was used in conjunction with the product’s watermelon flavour. The Panel therefore concluded that the Wicked Watermelon design did not go far enough to suggest an association with bravado or aggressive behaviour and therefore concluded that the product did not breach rule 3.2(b).
The Panel then moved on to discuss Dragon Soop Wicked Watermelon 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 Wicked Watermelon did not breach rule 3.2(f).
The Panel then turned to discuss Dragon Soop Wicked Watermelon against Code rule 3.2(h). The Panel considered that the pink and green colour scheme on the packaging was different to the Strawberry and Lime 2015 precedent but noted that the colours were muted and directly related to the flavour of the individual product. 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 Wicked Watermelon 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 also noted that the news article referenced by the first complainant involved a 22-year-old man, as opposed to an individual under-18, whose lunchbox had been packed by his mother and that she had packed a can of Dragon Soop Wicked Watermelon in it. 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 product did not breach rule 3.2(h).
The Panel then moved on to discuss Dragon Soop Wicked Watermelon 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 the product did not breach rule 3.2(j).
In summary of the above, the Panel therefore concluded that Dragon Soop Wicked Watermelon did not breach Code rules 3.1, 3.2(a), 3.2(b), 3.2(f), 3.2(h),3.2(j) or any other part of the Code.
Action by company:
None required.
Producer:
Halewood Artisanal Spirits plc
Complaint:
“I saw Deadmans fingers tequila on the shelf in Tesco and I was shocked to see that the letters in the name highlighted the word DANGER – which for an alcohol brand surely can’t be ok. I then looked into some of their other products and see they do a super spiced rum with a skull on fire, which also illicit danger.
I have attached the two products in question.
Please let me know your thoughts.”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.2(a)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way give the higher alcoholic strength, or intoxicating effect, undue emphasis. A product’s lower alcoholic strength may be emphasised proportionately when it is below the average strength for similar beverages. Factual information about alcoholic strength may be given.
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.
NOT UPHELD
The company’s submission:
The company stated that it respectfully disagreed that the Super Spiced Rum was in breach of rule 3.2(b) or any other part of the Portman Group’s Code of Practice. The company explained that the Dead Man’s Fingers range was generally edgy and bold and that the name of the brand was a play on words relating to the inedible part of a crab. The company further explained that the name was created in association with the Crab Shack Bar in Cornwall.
The company then moved on to focus on the design of the bottle and explained that the skull was a characterisation of ‘death’ which was designed to depict the consumption of the finger-like gills inside a crab, also known as ‘dead man’s fingers’, which according to folklore meant that if they were eaten, then the consumer would die. The company stated that the design was playful, which was in-keeping with the brand name and that it was its opinion that it was in no way threatening, violent, aggressive or dangerous and that the references to folklore could not be deemed to be anti-social or encourage illicit or illegal behaviour.
The company then explained that whilst the colour of the bottle was dark, the lettering was overtly bright and playful, and that there was no reference to the word ‘danger’ within the product. The company reiterated that the imagery was a play on folklore and a depiction of historical mythology related to ‘dead man’s fingers.’ The company stated that in this instance, the design of the skull was not the standard skull found on other Dead Man’s Fingers products, as this was a limited-edition product. The company explained that the skull design varied for limited-edition products to contrast them with its ‘standard’ range of products. The company explained that for this limited-edition variant it had chosen red colouring for the skull and flames to make the image bold and to emphasise the ‘Super Spiced’ nature of the product. The company highlighted that spice was regularly depicted by flames on both food and drinks packaging and was intended to reflect the hot nature of the spice.
The company then highlighted two similar products from its competitors, in order to show that the Super Spiced Rum was not out of kilter with other products on the market.
The company concluded by stating that no breach of the Code had occurred due to the reasons highlighted above.
The Panel’s assessment:
Code rule 3.2(b)
The Panel first discussed whether the packaging was in breach of Code rule 3.2(b). The Panel examined the skull on the front of the bottle and considered that the design was dark and sinister. The Panel considered the producer’s response to the complaint which stated that flames were often used on food and drinks packaging to indicate that a product contained ‘hot’ spice. The Panel acknowledged that it was common for flames to be used to depict ‘heat’, however, the Panel also considered that the connotations of the skull on the bottle went further than this.
The Panel discussed skull imagery more generally and noted that a skull and cross bones was sometimes used in popular culture to indicate danger or a warning. However, the Panel considered that in this instance, the skull was reminiscent of imagery used in horror films and created an edgy brand feel to appeal to its target market of young adults. The Panel considered the overall impression conveyed by the product in combination with the skull imagery and noted that no part of the product implied that it was dangerous to consume or implied any potential effect that drinking the product could lead to dangerous behaviour on the part of the consumer.
The Panel also considered that rum sometimes had an association with pirates and that they were often depicted as leading a dangerous lifestyle. However, the Panel noted that there was an absence of pirate imagery and that the product did not make an obvious link to pirates or create an association with a dangerous lifestyle.
In the absence of any imagery or written references to danger or dangerous activities the Panel concluded that the product did not breach Code rule 3.2(b).
Code rule 3.2(a)
The Panel then considered whether the product design placed undue emphasis on the higher alcoholic strength of the product. The Panel noted that the product had an alcoholic strength by volume (ABV) of 43% which was higher than the minimum 37.5% strength to be classified as a rum. The Panel considered the flaming skull on the front of the bottle, the word ‘super’ and noted the 43% ABV in bold red font on the front of the bottle which was further emphasised by placement on a lime green background. The Panel discussed the inclusion of the word ‘super’ and noted that the text on the back label described the ‘intense flavour’ and that the product was ‘jam packed with exotic spices…exactly why we call it Super Spiced’. The Panel also noted that the back label detailed the product’s Cornish heritage and that the reference to a super spiced Zombie was a cocktail name. After discussion, the Panel considered that ‘super spiced rum’ was clearly a reference to the spiced flavour of the product as opposed to the product’s higher alcoholic strength. In addition to this, the Panel considered the producer’s response which explained that the red flaming skull on the front of the bottle was chosen to reflect the spiced nature of the product and agreed that it was not a reference, either directly or indirectly, to the product’s higher alcoholic strength.
In conclusion, the Panel considered that whilst the 43% ABV was clear on the front of the bottle this was proportionate and that there were no other visual or written cues that placed undue emphasis on the product’s higher alcoholic strength. The Panel therefore concluded that the product did not breach Code rule 3.2(a).
Action by Company:
None required.
Producer:
Halewood Artisanal Spirits plc
Complaint:
“I saw Deadmans fingers tequila on the shelf in Tesco and I was shocked to see that the letters in the name highlighted the word DANGER – which for an alcohol brand surely can’t be ok. I then looked into some of their other products and see they do a super spiced rum with a skull on fire, which also illicit danger.
I have attached the two products in question.
Please let me know your thoughts.”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.2(b)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour.
NOT UPHELD
The company’s submission:
The company stated that it respectfully disagreed that the Tequila Reposado was in breach of rule 3.2(b) or any other part of the Portman Group’s Code of Practice. The company explained that the Dead Man’s Fingers range was generally edgy and bold and that the name of the brand was a play on words relating to the inedible part of a crab. The company further explained that the name was created in association with the Crab Shack Bar in Cornwall.
The company then moved on to focus on the design of the bottle and explained that the skull was a characterisation of ‘death’ which was designed to depict the consumption of the finger-like gills inside a crab, also known as ‘dead man’s fingers’, which according to folklore meant that if they were eaten, then the consumer would die. The company stated that the design was playful, which was in-keeping with the brand name and that it was its opinion that it was in no way threatening, violent, aggressive or dangerous and that the references to folklore could not be deemed to be anti-social or encourage illicit or illegal behaviour.
The company then explained that the marketing and branding relating to the product was in keeping with the Dead Man’s Fingers brand and that the colouring of the bottle and lettering, which highlighted and emphasised the word ‘Danger’ in an overtly bright and playful way was designed to invoke references to the old folklore and was a ‘fun’ twist on letters contained within the brand name. The company explained that the imagery was solely a harmless reference point to folklore and a depiction of the historical mythology related to ‘dead man’s fingers’.
The company then highlighted two similar products from its competitors, in order to show that the Tequila Reposado was not out of kilter with other products on the market.
The company concluded by stating that no breach of the Code had occurred due to the reasons highlighted above.
The Panel’s assessment:
The Panel first discussed whether the product should be considered under any Code rule other than 3.2(b) as raised by the complainant. The Panel agreed that this was not required.
The Panel discussed the word ‘danger’ which was highlighted in a red font within the words ‘Dead Man’s Fingers’ which was presented in a yellow font on the front of the bottle. The Panel considered that whilst the word ‘danger’ was highlighted on the front of the bottle, there was nothing else on the rest of the bottle that related to dangerous behaviour as the back of the bottle detailed the history and heritage of the brand. The Panel noted the producer’s argument in its formal response that the brand name was linked to ‘dead man’s fingers’ being the poisonous, inedible part of a crab and the folklore that eating them would result in death.
The Panel discussed the wording of Code rule 3.2(b), which stated: “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.” The Panel debated the intention of the rule alongside established precedents and noted that the rule was designed to prevent consumers from, directly or indirectly, associating an alcoholic drink with dangerous behaviour.
The Panel discussed the previous case of Suicyder that was considered by the Panel in 2019 under Code rule 3.2(b). The Panel noted that the name ‘Suicyder’, along with the imagery of the skull and the noose, created a direct link between suicide, alcohol and dangerous behaviour and was therefore subsequently upheld under rule 3.2(b). The Panel also discussed the previous cases of Thrillseeker (2019) and Disco Forklift Truck (2018), which were also considered by the Panel under Code rule 3.2(b). The Panel noted that in both cases there was discussion about the emulation of activities and fundamentally, that the linking of alcohol to dangerous behaviour and thrill seeking were problematic under the Code.
The Panel therefore noted that in these previous cases, the complaints were upheld because of an association made between alcohol and dangerous behaviour. With regard to the Dead Man’s Fingers case, the Panel considered that the word ‘danger’ in and of itself did not go far enough to create an association with a type of dangerous behaviour and noted the distinct difference between ‘danger’ in principle and an association with behaviour that would be considered dangerous before or after alcohol consumption.
The Panel then discussed the skull on the front of the bottle. The Panel acknowledged that there were instances where skulls were used in popular culture to denote danger, such as with a skull and cross bones. However, the Panel considered that the skull on the product was akin to imagery from the Day of the Dead Festival and was used to create an edgy brand feel to appeal to its target market of young adults. Whilst the Panel considered that this might be distasteful to some, the Panel noted that there was nothing else on the bottle that created an association, directly or indirectly, to dangerous behaviour.
After an in-depth discussion, the Panel concluded that the overall impression of the bottle did not create an association, either directly or indirectly, with dangerous behaviour. The Panel therefore did not uphold the complaint under Code rule 3.2(b).
Action by Company:
None required.
Producer:
JG Drinks Ltd t/a Copper in the Clouds
Complaint:
“Copper in the Clouds has a range of gin which feature cartoon like imagery such as a tiger in suit with glasses grating pepper onto a mango, as featured on their ”Mango & Black Pepper” gin bottle. The images are colourful and the characters are all anthropomorphic. Please see their website here https://copperintheclouds.co.uk/shop/
I believe these images will appeal to children under the age of 18. These characters are not adult in nature”
Complainant:
Portman Group acting in lieu of a referral from the Advertising Standards Authority
Decision:
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s
UPHELD
The company’s submission:
The company explained that it would respond to the single complaint received by a member of the public and would focus its response primarily on the packaging of the product as that was the basis of complaint.
The company highlighted that the illustration on the product label was bright, colourful and was intended to reflect the story of the contents of the bottle. The company explained that the presentation took a ‘playfully premium’ approach, which was intended to appeal to its target market which it had identified as predominantly female, concentrated in the 25-60 age range. The company explained that the hand finished nature of the product was intended to make the product stand out on-shelf from other spirits as the ideal gift.
The company went on to explain that the use of colour, shape and light made the design appeal to the human eye and that good design transcended age. The company stated that the design did not have a particular appeal to any age group and that it was simply an appealing illustration.
Finally, the company explained that it had sold close to 100,000 bottles in 2021 and that since the product was launched in 2016 this was the first complaint it had received. The company believed that it was severely disproportionate to investigate the product’s suitability for the market, based on the musings of one person.
The Panel’s Assessment:
The Panel discussed whether the product should be considered under any Code rule other than 3.2(h) as raised by the complainant. The Panel agreed that this was not required.
The Panel considered the overall impression conveyed by the product packaging and discussed the individual design elements that contributed toward this. The Panel considered that the Mango and Black Pepper flavour would appeal to adults as opposed to children and that the black, simplistic font used on the label was not overly childlike. The Panel also considered that the production process described on the back label was informative and adult in nature.
The Panel then examined the tiger and parrot characters on the front of the bottle. The Panel noted that the characters were clothed in an adult style and were engaged in activities that were unlikely to resonate with children. The Panel noted the size and placement of the characters and considered that they were placed prominently on the bottle and were a significant feature of the product artwork. The Panel discussed previous precedent relating to the presentation of anthropomorphic animals, in particular the Running With Sceptres case in 2020, but considered that their inclusion was not inherently a breach of Code rule 3.2(h) and that the utmost care had to be taken with prominence and presentation so that characters would not have a particular appeal to under-18s.
The Panel noted the high level of detail in the illustrations of the characters on the Mango and Black Pepper Gin and noted that they were not simplistic in their design. The Panel considered that the high level of detail in the product artwork, both for the jungle scene and the characters, contributed to the impression that the artwork could appear in a children’s story book, with some comparisons being made with The Wind in the Willows and The Tiger Who Came to Tea. The Panel discussed the characters in more detail and noted in particular the large eyes on the tiger and parrot. The Panel discussed how the ‘large eye’ technique was reminiscent of children’s films, where large eyes were used to make children connect with, and illicit sympathy for, the characters shown. The Panel considered that the prominence and illustrative style of the tiger and parrot, particularly with exaggerated large eyes, would have a particular appeal to under-18s.
The Panel also discussed the gift-wrapped nature of the product which included a ribbon at the top that when taken off revealed a replica label on the product’s bottle. The Panel noted that this was an innovative, premium concept but considered that this further contributed to the product having a particular appeal to under-18s as, when considered alongside the artwork, it was reminiscent of a Christmas gift that children may unwrap.
In conclusion, taking into account the overall impression conveyed by the product, the Panel considered that the artistic representation of the tiger and parrot with large eyes prominently displayed on the front of the bottle and the gift-wrapped nature of the product meant that that the product had a particular appeal to under-18s. The Panel therefore upheld the complaint under Code rule 3.2(h).
Action by company:
Working with the Advisory Service.
Producer:
Marks and Spencer plc
Complaint:
“I believe the light-up bottles of gin and other drinks being sold and prominently displayed by Marks and Spencer are in breach of Portman’s rules regarding appeal to children.
The lights operate only for a limited time then need switched on again. One can imagine the “Do it again!” cry from children, just as happens with a toy or Christmas decoration with a similar mechanism.
These alcoholic drinks are being sold as a novelty which is against the principle of the Portman rules and are encouraging children to see them as a fun item.”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.1
The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.
UPHELD
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s
UPHELD
The company’s submission
The company explained that it took its responsibilities for marketing and selling alcohol very seriously, including compliance with the Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks. The company stated that it did not believe the product had a particular appeal to under-18s as the name, colour, images, flavouring, silver flakes and lighting had been designed to have more appeal to those over the age of 18. The company stated that the product did not use any Christmas references which had a particular appeal to under-18s.
The company explained that the product was first introduced in store and for online purchase in late 2020 and due to the success of the product, was sold again in 2021. The company explained that to the best of its knowledge, there had not been an instance where sale of the product had been refused to an under-18 and had, at no point, ever been sold to an under-18. The company also stated that it had not received any adverse comments from customers about the product appealing to under-18s. The company stated that the pricing of the product and its placement in store made it clear that the product was alcoholic and that it would not have a particular appeal to under-18s within the store environment.
The company then focused on the design elements of the product. The company explained that the product was designed to create a contrasting but complimentary design with the Clementine Light Up Snow Globe Gin Liqueur, to encapsulate the spirit of Christmas. The company stated that the design brief focused on a design that was aimed at adults as that reflected the target market and also took into account the Portman Group’s Codes of Practice. The company highlighted that the Panel had considered the celebration of Christmas in a previous case and ruled that the occasion was celebrated by all ages and did not resonate particularly with under-18s in a way that it did not with over-18s.
The company stated that snow globes did not have a particular appeal to under-18s and that their origin could be traced back to the late 19th century in Vienna where they were invented by Erwin Perzy. The company explained that the first four decades of production from Perzy’s factory depicted a snow globe with a Basilica/Church and that the falling material inside the globe was representative of snow falling. The company stated that the silver leaf in the product was representative of snow falling which reflected a winter scene which everyone would associate with Christmas. The company stated that given this history, snow globes had mass appeal and that they were not toys.
The company then explained that the images on the product were of The Nutcracker Ballet, which was chosen as a theme as it was a Christmas ballet with ubiquitous appeal that captured the spirit of Christmas. The company explained that the music score to the ballet was written by Tchaikovsky and was generally performed at Christmas in theatres across the world. The company stated that if a character from a popular pantomime had been chosen, for instance Cinderella, then a different view could be taken that the image had a particular appeal to under-18s. In this instance, the company highlighted that The Nutcracker Ballet had mass appeal and that the ballerina on the bottle did therefore not have a particular appeal to under-18s. The company explained that the drawing style was a contemporary, adult depiction in keeping with the colour palette used for the rest of the artwork and therefore meant that it did not stand out on the bottle.
The company explained that the combination of the character on the bottle, the colours, and other imagery on the bottle had all been designed to ensure that it did not have a particular appeal to under-18s. The company explained that the artwork was designed to contribute to the overall impression that it was a product for those 18 and over and focused on the mass appeal of celebrating Christmas. The company added that there were no bright colours, cartoon style characters or words that were popular with under-18s.
The company explained that following advice from the Portman Group’s Advisory Service, the design had been simplified and that the product originally had three ballerinas but this was revised to feature only one which was only visible when looking directly through the bottle, due to reverse printing.
The company then explained that the light up feature of the bottle was to highlight the falling silver leaf which represented snow and to simulate the turning on of Christmas lights. The company stated that it believed it had resonance with all groups of people and that it was not designed to have a particular appeal to under-18s. The company stated that the light up feature was also designed to enhance the premium nature of the product and that it was not designed as a novelty, toy, or something that should be used by children. The company explained that the light turned off in order to preserve the battery life and that it was not designed as a means of entertainment or to appeal to children. The light turning off also ensured that it would not be left on and drain the battery when in-store. The company then highlighted that light up decorations and gifts were commonplace at Christmas and that the light up feature did not have a particular appeal to under-18s.
With regard to the bottle shape, the company stated that it did not have a particular appeal to under-18s and that it had no association with any product that under-18s might purchase or be familiar with. Additionally, the company believed that it was apparent from the design of the bottle that it had more appeal to over-18s and that it was recognisable as an alcoholic product.
The company explained that compared to a traditional snow globe, the product only contained silver leaf to represent snow, which it believed showed that the overall impression of the product did not have a particular appeal to under-18s. The company explained that it took the decision to put the images on the outside of the bottle, not contained within it, in order to capture the winter scene and the spirit of Christmas. Additionally, the company stated that there were many products that used similar silver flakes to create the impression of a premium brand. The company stated that it was aware that if the design of the product featured a Father Christmas figurine within it, then it would likely have a particular appeal to under-18s. The company emphasised that considerable care had been taken in the design process to avoid a particular appeal to under-18s.
The company then highlighted that the liquid of the product was colourless, and that the spiced sugar plum flavour of the product would not have a particular appeal to under-18s in comparison to other flavours, such as rhubarb and custard gin, given its close association with the sweet.
With regards to the label, the company explained that the product had a swing tag label on the neck of the bottle that was tightly secured, which made clear that the product was a gin liqueur with a 20% ABV. The company stated that the alcoholic nature of the product was therefore communicated with absolute clarity. The company also explained that the product had a second label on the underside of the bottle, which stated that it was an alcoholic product and included the ABV, unit information, Drinkaware message and a warning to keep it out of reach of children. The company stated that this warning was not included because of any concern that it had a particular appeal to children, but in order to comply with product safety information as the product contained a small battery.
In conclusion, the company highlighted that in order to test whether a product had a particular appeal to under-18s, Portman Group guidance stated that packaging and promotions had to appeal and/or resonate with under-18s in a way that they did not with over-18s. The company stated that it was its belief that the product did not have such appeal. The company noted that the complaint specifically focused on the operation of the lights, but that this element could not be looked at in isolation as the whole of the product’s brand identity had to be considered, including the bottle design, imagery, colour palette, flavour, language and labelling information.
The Panel’s assessment
The Panel first considered whether the Spiced Sugar Plum Light Up Snow Globe Gin Liqueur had a particular appeal to under-18s. The Panel noted the precedent set in the Diageo Bauble Cocktail case (2015) which found that Christmas had a broad appeal to all age groups. The Panel carefully considered the producer’s response and discussed the individual design elements that contributed to the overall impression conveyed by the product packaging. The Panel noted that The Nutcracker Ballet had a broad, universal appeal and acknowledged that it was a ballet that did not have a particular appeal to under-18s. The Panel considered the artwork on the bottle and noted that a ballerina was visible when viewed directly through the bottle, particularly when the light was turned on. The Panel noted that while ballerinas were associated with The Nutcracker Ballet, it was not an exclusive association, and that ballerina imagery had long been particularly prevalent in children’s culture. The Panel noted that the depiction of the ballerina in this instance was very similar to a ballerina that would be found in a child’s music box and was likely to have a particular appeal to children, particularly young girls. The Panel considered the colour palette used and noted that the snow-capped trees incorporated a colour scheme which used contrasting colours to ensure the design stood out but which could also enhance the product’s appeal to children.
The Panel then considered the interactive nature of the product, in particular the light-up element that was activated on the base of the product. The Panel considered the complainant’s assertion that the light was designed to encourage children to turn it on and off again but noted that the light turned off automatically after 45 seconds and therefore that it would not encourage repeated pressing of the light feature in and of itself. The Panel discussed precedent from the Clwb Tropica Four Pack decision (2021) and the concern of a product incorporating an interactive feature that had the potential to particularly appeal to under-18s when considered alongside other design elements that could also appeal to children. The Panel considered the snow globe appearance of the product and the silver flakes designed to appear like snow. The Panel discussed the fundamental appeal of snow globes at length and considered that they could hold a strong appeal to children, but that compliance would ultimately depend on the overall impression conveyed if used in alcohol marketing. When considering the overall impression of the product, including the image of a ballerina, the interactive light-up feature, the contrasting colour scheme and the silver flakes that created a strong association with a snow globe, the Panel concluded that the product had a particular appeal to under-18s and accordingly upheld the complaint under Code rule 3.2(h).
During discussion, the Panel also considered whether the product communicated its alcoholic nature with absolute clarity. The Panel noted that the product used a swing tag around the neck of the bottle which included the wording ‘Gin Liqueur’, the product’s alcoholic strength by volume presented as ‘20% vol’, a reference to the Drinkaware website, unit content and the Chief Medical Officers low risk drinking guidelines. However, the Panel noted that the swing tag label was attached with an elasticated string which was not securely fastened and could easily be removed, both in the retail and home environment. The Panel also noted that the swing tag was designed as a gift tag with the words ‘to’ and ‘from’ inside which meant that if the product was given as a gift the recipient may be inclined to remove the gift tag as was normal after receiving a gift. The Panel noted that if the tag was removed, either by accident or deliberately, then there would be no clear alcoholic signifiers on the visible sides of the bottle which is where such information would typically be found.
The Panel understood that the company had sought a view from the Portman Group’s Advisory Service about the product prior to launch and whether it was likely to comply with the Code of Practice. As per clause 5.22 of the Code, the Panel considered the Advisory Service’s response and noted that it had raised concerns about the swing tag under Code rule 3.1 as the tag could easily be detached from the product and that, in the opinion of the Advisory Service, the product did not communicate the alcoholic nature of the product with absolute clarity. The Panel noted that the company had chosen not to act on the advice provided on this point.
The Panel noted that compliance under Code rule 3.1 would be determined by the overall impression conveyed by a product and subsequently then considered the cues on the bottle which might indicate whether the product was alcoholic. The Panel noted that there was no writing on the sides of the bottle but noted that the underside of the product contained a further label which included information about the alcoholic nature of the product by referring to the alcohol type and the product’s alcoholic strength by volume. However, the Panel considered that the font size was very small in relation to other text on the label, and that the largest body of text was in relation to information about the batteries and lights. The Panel noted that the label was only secured with glue and that it could be removed or tarnished if placed on a surface.
The Panel discussed a previous complaint case about a Guinness Original 4 x 330ml cardboard cluster pack (2014) which contained information about the alcoholic nature on the underside of the cardboard secondary packaging. However, the Panel considered that in comparison to the Clementine Gin Liqueur, the cardboard outer on the Guinness product could not easily be detached and that the cans inside the packaging, which were partially visible, also contained references to the alcoholic nature of the product.
The Panel noted that the average consumer would not typically look on the underside of a product for key information which would convey the product’s alcoholic nature and considered that this could mislead consumers if the accompanying neck tag was removed, particularly when considered in combination with the ballerina image, the light-up feature and silver flakes which were not traditionally associated with alcoholic products. Taking the whole product into consideration, the Panel therefore concluded that the product also breached Code rule 3.1.
Action by company:
Working with the Advisory Service.
Producer:
Marks and Spencer plc
Complaint:
“I believe the light-up bottles of gin and other drinks being sold and prominently displayed by Marks and Spencer are in breach of Portman’s rules regarding appeal to children.
The lights operate only for a limited time then need switched on again. One can imagine the “Do it again!” cry from children, just as happens with a toy or Christmas decoration with a similar mechanism.
These alcoholic drinks are being sold as a novelty which is against the principle of the Portman rules and are encouraging children to see them as a fun item.”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.1
The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.
UPHELD
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s
UPHELD
The company’s submission
The company explained that it took its responsibilities for marketing and selling alcohol very seriously, including compliance with the Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks. The company stated that it did not believe the product had a particular appeal to under-18s as the name, colour, images, flavouring, gold flakes and lighting had been designed to have more appeal to those over the age of 18. The company stated that the product did not use any Christmas references which had a particular appeal to under-18s.
The company explained that the product was first introduced in store and for online purchase in late 2020 and due to the success of the product, was sold again in 2021. The company explained that to the best of its knowledge, there had not been an instance where sale of the product had been refused to an under-18 and had, at no point, ever been sold to an under-18. The company also stated that it had not received any adverse comments from customers about the product appealing to under-18s. The company stated that the pricing of the product and its placement in store made it clear that the product was alcoholic and that it would not have a particular appeal to under-18s within the store environment.
The company then focused on the design elements of the product. The company explained that the product was designed to create a contrasting but complimentary design with the Spiced Sugar Plum Light Up Snow Globe Gin Liqueur, to encapsulate the spirit of Christmas. The company stated that the design brief focused on a design that was aimed at adults as that reflected the target market and also took into account the Portman Group’s Codes of Practice. The company highlighted that the Panel had considered the celebration of Christmas in a previous case and ruled that the occasion was celebrated by all ages and did not resonate particularly with under-18s in a way that it did not with over-18s.
The company stated that snow globes did not have a particular appeal to under-18s and that their origin could be traced back to the late 19th century in Vienna where they were invented by Erwin Perzy. The company explained that the first four decades of production from Perzy’s factory depicted a snow globe with a Basilica/Church and that the falling material inside the globe was representative of snow falling. The company stated that the gold leaf in the product was representative of snow falling which reflected a winter scene which everyone would associate with Christmas. The company stated that given this history, snow globes had mass appeal and that they were not toys.
The company then explained that the images on the product were of The Nutcracker Ballet, which was chosen as a theme as it was a Christmas ballet with ubiquitous appeal that captured the spirit of Christmas. The company explained that the music score to the ballet was written by Tchaikovsky and was generally performed at Christmas in theatres across the world. The company stated that if a character from a popular pantomime had been chosen, for instance Cinderella, then a different view could be taken that the image had a particular appeal to under-18s. In this instance, the company highlighted that The Nutcracker Ballet had mass appeal and that the nutcracker on the bottle did therefore not have a particular appeal to under-18s. The company explained that the drawing style was a contemporary, adult depiction in keeping with the colour palette used for the rest of the artwork and therefore meant that it did not stand out on the bottle.
The company explained that the combination of the character on the bottle, the colours, and other imagery on the bottle had all been designed to ensure that it did not have a particular appeal to under-18s. The company explained that the artwork was designed to contribute to the overall impression that it was a product for those 18 and over and focused on the mass appeal of celebrating Christmas. The company added that there were no bright colours, cartoon style characters or words that were popular with under-18s.
The company explained that following advice from the Portman Group’s Advisory Service, the design had been simplified and that the product originally had three Nutcracker soldiers but this was revised to feature only one with a slightly different colour palette.
The company then explained that the light up feature of the bottle was to highlight the falling gold leaf which represented snow and to simulate the turning on of Christmas lights. The company stated that it believed it had resonance with all groups of people and that it was not designed to have a particular appeal to under-18s. The company stated that the light up feature was also designed to enhance the premium nature of the product and that it was not designed as a novelty, toy, or something that should be used by children. The company explained that the light turned off in order to preserve the battery life and that it was not designed as a means of entertainment or to appeal to children. The light turning off also ensured that it would not be left on and drain the battery when in-store. The company then highlighted that light up decorations and gifts were commonplace at Christmas and that the light up feature did not have a particular appeal to under-18s.
With regard to the bottle shape, the company stated that it did not have a particular appeal to under-18s and that it had no association with any product that under-18s might purchase or be familiar with. Additionally, the company believed that it was apparent from the design of the bottle that it had more appeal to over-18s and that it was recognisable as an alcoholic product.
The company explained that compared to a traditional snow globe, the product only contained gold leaf to represent snow, which it believed showed that the overall impression of the product did not have a particular appeal to under-18s. The company explained that it took the decision to put the images on the outside of the bottle, not contained within it, in order to capture the winter scene and the spirit of Christmas. Additionally, the company stated that there were many products that used similar gold flakes to create the impression of a premium brand. The company stated that it was aware that if the design of the product featured a Father Christmas figurine within it, then it would likely have a particular appeal to under-18s. The company emphasised that considerable care had been taken in the design process to avoid a particular appeal to under-18s.
The company then highlighted that the liquid of the product was colourless, and that the clementine flavour of the product would not have a particular appeal to under-18s in comparison to other flavours, such as rhubarb and custard gin, given its close association with the sweet.
With regards to the label, the company explained that the product had a swing tag label on the neck of the bottle that was tightly secured, which made clear that the product was a gin liqueur with a 20% ABV. The company stated that the alcoholic nature of the product was therefore communicated with absolute clarity. The company also explained that the product had a second label on the underside of the bottle, which stated that it was an alcoholic product and included the ABV, unit information, Drinkaware message and a warning to keep it out of reach of children. The company stated that this warning was not included because of any concern that it had a particular appeal to children, but in order to comply with product safety information as the product contained a small battery.
In conclusion, the company highlighted that in order to test whether a product had a particular appeal to under-18s, Portman Group guidance stated that packaging and promotions had to appeal and/or resonate with under-18s in a way that they did not with over-18s. The company stated that it was its belief that the product did not have such appeal. The company noted that the complaint specifically focused on the operation of the lights, but that this element could not be looked at in isolation as the whole of the product’s brand identity had to be considered, including the bottle design, imagery, colour palette, flavour, language and labelling information.
The Panel’s assessment
The Panel first considered whether the Clementine Light Up Snow Globe Gin Liqueur had a particular appeal to under-18s. The Panel noted the precedent set in the Diageo Bauble Cocktail case (2015) which found that Christmas had a broad appeal to all age groups. The Panel carefully considered the producer’s response and discussed the individual design elements that contributed to the overall impression conveyed by the product packaging. The Panel noted that The Nutcracker Ballet had a broad, universal appeal and acknowledged that it was a ballet that did not have a particular appeal to under-18s. However, the Panel considered that the toy soldiers depicted were not only reminiscent of The Nutcracker Ballet but also akin to children’s toy soldiers, for instance those that also appeared in Hans Christian Andersen’s Tin Soldier and were not exclusively associated with an adult ballet. The Panel also noted that there had been a resurgence in retro toys which included toy soldiers like those from The Nutcracker and that their imagery was first and foremost recognised as a toy that was designed to have appeal to under-18s. The Panel noted the sophisticated and stylised nature of the drawing of the toy soldier but considered that ultimately the illustration depicted a children’s toy on an alcoholic product and therefore had a particular appeal to under-18s. The Panel also noted that from a certain angle the toy soldier appeared to be presented in a toy shop window which the Panel considered further contributed to the impression that the illustration had a particular appeal to under-18s.
The Panel then considered the interactive nature of the product, in particular the light-up element that was activated on the base of the product. The Panel considered the complainant’s assertion that the light was designed to encourage children to turn it on and off again but noted that the light turned off automatically after 45 seconds and therefore that it would not encourage repeated pressing of the light feature in and of itself. The Panel discussed precedent from the Clwb Tropica Four Pack decision (2021) and the concern of a product incorporating an interactive feature that had the potential to particularly appeal to under-18s when considered alongside other design elements that could also appeal to children. The Panel considered the snow globe appearance of the product and the gold flakes designed to appear like snow. The Panel discussed the fundamental appeal of snow globes at length and considered that they could hold a strong appeal to children, but that compliance would ultimately depend on the overall impression conveyed if used in alcohol marketing. The Panel noted the Clementine flavour of the product and considered that it was one that would generally appeal more to adults than under-18s as it was a sophisticated flavour that adults would associate with Christmas. However, when considering the overall impression of the product, including the depiction of a children’s toy soldier, the interactive light-up feature and the gold flakes that created a strong association with a snow globe, the Panel concluded that the product had a particular appeal to under-18s and accordingly upheld the complaint under Code rule 3.2(h).
During discussion, the Panel also considered whether the product communicated its alcoholic nature with absolute clarity. The Panel noted that the product used a swing tag around the neck of the bottle which included the wording ‘Gin Liqueur’, the product’s alcoholic strength by volume presented as ‘20% vol’, a reference to the Drinkaware website, unit content and the Chief Medical Officers low risk drinking guidelines. However, the Panel noted that the swing tag label was attached with an elasticated string which was not securely fastened and could easily be removed, both in the retail and home environment. The Panel also noted that the swing tag was designed as a gift tag with the words ‘to’ and ‘from’ inside which meant that if the product was given as a gift the recipient may be inclined to remove the gift tag as was normal after receiving a gift. The Panel noted that if the tag was removed, either by accident or deliberately, then there would be no clear alcoholic signifiers on the visible sides of the bottle which is where such information would typically be found.
The Panel understood that the company had sought a view from the Portman Group’s Advisory Service about the product prior to launch and whether it was likely to comply with the Code of Practice. As per clause 5.22 of the Code, the Panel considered the Advisory Service’s response and noted that it had raised concerns about the swing tag under Code rule 3.1 as the tag could easily be detached from the product and that, in the opinion of the Advisory Service, the product did not communicate the alcoholic nature of the product with absolute clarity. The Panel noted that the company had chosen not to act on the advice provided on this point.
The Panel noted that compliance under Code rule 3.1 would be determined by the overall impression conveyed by a product and subsequently then considered the cues on the bottle which might indicate whether the product was alcoholic. The Panel noted that there was no writing on the sides of the bottle but noted that the underside of the product contained a further label which included information about the alcoholic nature of the product by referring to the alcohol type and the product’s alcoholic strength by volume. However, the Panel considered that the font size was very small in relation to other text on the label, and that the largest body of text was in relation to information about the batteries and lights. The Panel noted that the label was only secured with glue and that it could be removed or tarnished if placed on a surface.
The Panel discussed a previous complaint case about a Guinness Original 4 x 330ml cardboard cluster pack (2014) which contained information about the alcoholic nature on the underside of the cardboard secondary packaging. However, the Panel considered that in comparison to the Clementine Gin Liqueur, the cardboard outer on the Guinness product could not easily be detached and that the cans inside the packaging, which were partially visible, also contained references to the alcoholic nature of the product.
The Panel noted that the average consumer would not typically look on the underside of a product for key information which would convey the product’s alcoholic nature and considered that this could mislead consumers if the accompanying neck tag was removed, particularly when considered in combination with toy soldier imagery, the light-up feature and gold flakes which were not traditionally associated with alcoholic products. Taking the whole product into consideration, the Panel therefore concluded that the product also breached Code rule 3.1.
Action by company:
Working with the Advisory Service.
Producer:
Jatt Life Ltd t/a Jatt Life
Complaint summary:
On the official Jatt Life Global website they even promote merchandise for young children with baby grows and baby bib’s, clearly this is something that a responsible alcohol brand should not be intending to do? Especially when they have the wording ‘make mine a double’ on a babies bib’
‘I would also like to raise concerns over the name as it is a name based around caste, which within the Sikh religion is not condoned nor do practising Sikh’s drink alcohol so it is very disrespectful.’
‘I have great issue with the branding of Jatt Life as the term Jatt represents casteism within our religion and culture and creates a great divide in our communities, in addition to that, myself I come from a Jatt background and culturally a Jatt is usually used in the context of drunken party behaviour, where extreme drinking occurs including downing ‘in one’, free pouring of spirits, drinking recklessly directly from a bottle. Within our culture this is widely understood, even from the bhangra music the term Jatt is closely associated with drunken behaviour, bravado, aggression, fighting, guns, weapons, womanising, drugs and more.’
Complainant:
Member of the public
Decision:
Under Code paragraph 3.2(b)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour.
NOT UPHELD
Under Code paragraph 3.2(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
NOT UPHELD
Under Code paragraph 3.2(e)
A drink, it’s 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(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(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 (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators
NOT UPHELD
Under Code paragraph 3.3
A drink’s name, its packaging and any promotional material or activity should not cause serious or widespread offence.
NOT UPHELD
The company’s submission
The company began by explaining that it had been set up in March 2020 and that it acted diligently to ensure that the brand image was that of a luxury, ultra-premium brand. The company explained that the spirit range was manufactured and available to purchase in the UK and was distributed globally to Australia, Canada and New Zealand. The company stated that it believed the complaint had come from an individual who was uncomfortable with the success of the company and that the complainant was not driven by concerns about non-compliance with the Portman Group Codes of Practice.
The company explained that it was happy to correct anything that did not comply with the Codes of Practice but that, in regard to this particular complaint, it did not believe the product packaging or branded merchandise were in breach.
In response to the first part of the complaint about the branded babygrow and bib, which included the phrases ‘Jatt Life Baby’ and ‘Make mine a double’, the company stated that the items were a fun bit of marketing. The company explained that the word ‘jatt’ translated to ‘farmer’ and so the babygrow, that read as ‘Jatt Life Baby’ therefore translated to ‘Farmer Baby’. The company also explained that the bib that stated, ‘Make mine a double’ was a joke about drinking milk. The company stated that it had personal experience of other bibs with humorous quotes on them such as ‘I have a drinking problem’ and ‘I drink till I pass out’. The company explained that the bib and babygrow were created as fun and quirky gift ideas and were not encouraging parents to give their babies a double shot of vodka.
The company then addressed the second part of the complaint regarding the product name ‘Jatt Life’ and reiterated that ‘jatt’ translated to ‘farmer’ and had no other connotations or anything to do with religion.
In response to the last part of the complaint about the term ‘Jatt’ having cultural associations with drunken behaviour, bravado, aggression, fighting, guns, weapons, womanising and drugs, the company stated that it believed that this was an entirely subjective point and had never heard the term used in this way before. The company repeated that ‘Jatt’ translated to ‘farmer’ and had no connotations with any issues that the complainant had raised. The company therefore believed that the product packaging and branded merchandise were not in breach of Code rules 3.2(b), 3.2(d), 3.2(e), 3.2(f), 3.2(g) or 3.2(h.).
In response to whether the product packaging and branded merchandise breached Code rule 3.3, the company explained that it had been trading since March 2020, had sold hundreds of thousands of bottles globally, had appeared in numerous press articles and had won awards for the product, but that this was the first time it had heard that someone had been offended by the brand name.
The Panel’s assessment
Jatt Life Original Vodka and Brand Name
The Panel began by discussing the overall impression conveyed by the packaging of Jatt Life Original Vodka. The Panel noted that the label was muted, mature and included limited text on the back label which referred to the quality of the ingredients and the line ‘we don’t settle for anything less than the best…so why should you’. The Panel also noted that the back label included the UK Chief Medical Officers’ Low Risk Drinking Guidelines and a pregnancy warning. After thorough analysis of the product label, the Panel concluded that there was no direct, or indirect, association with anti-social or dangerous behaviour, sexual activity or success, social success, irresponsible or immoderate consumption, encouragement to drink rapidly or elements that could be considered to have a particular appeal to under-18s. Accordingly, the Panel did not uphold the complaint under Code rules 3.2(b), 3.2(d), 3.2(e), 3.2(f), 3.2(g) and 3.2(h).
The Panel considered the name ‘Jatt Life’, and whether it had any connotations that could cause serious or widespread offence. The Panel discussed its own research of the word ‘jatt’ and stated that it understood that the term referred to a member of an agricultural people who resided mostly in Punjab but were present in other areas of Northern India and Pakistan comprised of Muslim, Hindu, and Sikh groups. Outside of this definition, the Panel understood that the word could be used to refer to a person who was a ‘peasant’ and noted that there was some anecdotal evidence which associated certain stereotypes with the group such as consuming alcohol and living a hedonistic lifestyle.
The Panel acknowledged that there could be a dual meaning to the word ‘jatt’ and therefore discussed how the word was likely to be understood, with particular focus on the producer’s usage of the word. The Panel noted that while there could be some cultural stereotypes associated with the word it was clear in the producer’s marketing of the product that it was proud of the term and that the word was only used in a positive manner to refer to Jatt Life as an aspirational lifestyle, as opposed to being used as a derogatory term.
The Panel noted that the complainant had raised concerns that the word was seriously offensive within the Sikh community. The Panel therefore requested that expert advice be sought from various Sikh representative organisations to understand more about the definition of the term and any potential cultural meanings associated with the word. The Code Secretariat sought a view from five Sikh representative organisations all of which did not respond.
In light of the above, the Panel discussed whether the phrase was likely to inherently cause serious offence, or whether it was viewed as offensive by some based on cultural stereotypes. While the Panel acknowledged that the name was seriously offensive to the complainant, the Panel noted that the complainant had provided no evidence to support their assertions and could find no evidence which suggested the term was seriously offensive within the Sikh community or to the average consumer in a serious or widespread capacity.
Given the lack of evidence to the contrary, the Panel stated that there was nothing on the product packaging, or in the producer’s accompanying marketing, that suggested the name ‘Jatt Life’ caused serious or widespread offence and accordingly did not uphold the complaint against the product name ‘Jatt Life’ under Code rule 3.3.
Jatt Life Babygrow and Jatt Life Bib
The Panel then discussed the Jatt Life babygrow and Jatt Life bib. The Panel noted the wording of Code rule 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’ and discussed accompanying guidance issued by the Portman Group which stated that the word ‘particular’ was not a test of quantity but the way in which something appeals i.e. the packaging/promotion resonates with under-18s in a way that it does not with adults The Panel discussed whether baby clothing would have a particular appeal to under-18s as it was predominantly aimed at adults and designed to fundamentally appeal to adults as opposed to babies. The Panel acknowledged that the phrase ‘make mine a double’, which was on the bib, could be seen as amusing to young adults and was intended in a tongue in cheek way that did not realistically encourage parents to feed vodka to their babies. The Panel discussed whether the Jatt Life brand was likely to be understood as a brand beyond producing alcohol, similar to other conglomerates that may have numerous subsidiaries operating under one company name. However, the Panel concluded that the phrasing ‘make mine a double’, in combination with the company’s status as an alcohol producer, created a strong association between the brand and alcohol.
The Panel stated that despite these points, it was fundamentally uncomfortable with alcohol branding appearing on children’s apparel. The Panel returned to the wording of Code rule 3.2(h) and considered that the items did not breach the letter of Code rule 3.2(h) which required a ‘particular’ appeal to under-18s because by nature the intended wearer (a baby) was unlikely to have the faculties to choose its own clothing. On that basis, the Panel found that neither the Jatt Life babygrow or Jatt Life bib created a technical breach of the Code and accordingly did not uphold the complaint under Code rule 3.2(h).
During discussion, the Panel noted that rule 3.4 of the Portman Group’s Alcohol Sponsorship Code read as ‘Drinks companies must not allow the placement of their brand names, logo or trademark (including the non-alcoholic version of the alcohol brand) on merchandise which has a particular appeal to/intended for use primarily by under-18s’. The Panel acknowledged that the branded merchandise did not form part of a sponsorship agreement but noted that the wording in the Alcohol Sponsorship Code could have captured such activity if the rule wording was replicated in the Naming, Packaging and Promotion of Alcoholic Drinks Code. The Panel strongly encouraged the Portman Group to address the current regulatory gap in the Naming, Packaging and Promotion of Alcoholic Drinks Code so that branded alcohol merchandise for babies was not permitted in the future.
Action by Company:
None required.
Producer:
JL Drinks Ltd t/a Jatt Life
Complaint:
As a member of the public I find it shocking that Jatt life Global are encouraging ‘down in one’ of a miniature bottle drinking challenge as a way to promote their social media. The brand uses the term “You’ve been Jatted” as a way to show that you have completed the challenge, this has been openly shown on their Instagram feed with the owners themselves getting involved in the challenge and also encouraging others around them to down the miniature bottle in one attempt.
They have been doing this in car events where they are sponsoring the event with evening parties following long drives in high performance vehicles which they have their branding and most importantly their car private registration which they use to promote their brand.’
‘They also sponsor ‘The Cannon Ball Run’ (they have their branding put on all the cars part of the club/race and regularly go to arranged drag races and race with their own vehicles’
Complainant:
Member of the public
Decision:
Under Code paragraph 3.1:
As an integral part of each new alcohol sponsorship agreement, drinks companies must ensure there is a recognisable commitment to promoting responsible drinking and/or supporting diversionary/community activities; taking into account the size, scale, reach, and length of the sponsorship.
UPHELD
Under Code paragraph 3.3:
Drinks companies must not sponsor individuals, activities, teams, events, tournaments, competitions, bands or celebrities which have a particular appeal to, or are primarily aimed at, under-18s.
NOT UPHELD
Under Code paragraph 3.4:
Drinks companies must not allow the placement of their brand names, logo or trademark (including the non-alcoholic version of the alcohol brand) on merchandise which has a particular appeal to/intended for use primarily by under-18s.
NOT UPHELD
Under Code paragraph 3.7:
There must be no implication that bravado, aggressive, violent, dangerous or anti-social behaviour is advocated or condoned by a drinks company or brand.
UPHELD
Under Code paragraph 3.8:
Drinks companies must not sponsor individuals, groups or events associated with sexual activity or sexual success.
NOT UPHELD
Under Code paragraph 3.9:
Drinks companies must not sponsor individuals, groups or events which encourage illegal, irresponsible or immoderate consumption.
UPHELD
Under Code paragraph 3.10:
Anyone carrying out sampling must comply with current licensing legislation.
UPHELD
Under Code paragraph 3.11:
Sampling must not encourage illegal, irresponsible or immoderate consumption such as binge-drinking, drunkenness or drink driving and should not have a particular appeal to under-18s.
NOT UPHELD
Under Code paragraph 3.12:
Drinks companies must not use images of people who are, or look as if they are, under twenty-five years of age, where there is any suggestion that they are drinking alcohol or they are featured in a significant role. Images may be shown where people appear only in an incidental context.
UPHELD
Under Code paragraph 3.13:
Sponsorship must not imply it is acceptable to consume alcohol before or while playing sport or suggest alcohol enhances sporting performances or social success.
UPHELD
The company’s submission
The company began by explaining that it had been set up in March 2020 and that it acted diligently to ensure that the brand image was that of a luxury, ultra-premium brand. The company explained that the spirit range was manufactured and available to purchase in the UK and was distributed globally to Australia, Canada and New Zealand. The company stated that it believed the complaint had come from an individual who was uncomfortable with the success of the company and that the complainant was not driven by concerns about non-compliance with the Portman Group Codes of Practice.
In response to the first part of the complaint, the company stated that it had never encouraged consumers to down any of its products and that the product was not available in miniature bottles for consumers to purchase. The company explained that it was unable to control if consumers posted consuming the product in this way on social media. The company stated that as a brand it was very clear to showcase its drinks as ultra-premium and to be sipped and enjoyed.
The company then addressed the use of the term ‘You’ve been Jatted’ in the complaint. The company confirmed that some of its customers did use the term ‘Jatted’ but that it was simply a play on words of its brand name and the term itself was meaningless. The company stated that the owners of Jatt Life had not participated in any drinking challenges.
The company explained that it sponsored a driving experience holiday company called the Cannon Run that hold small events across the year where supercar owners meet and drive scenic routes across the globe in a safe manner. The company explained that it had chosen to sponsor the event as its branding sticker was stuck to every supercar that took part in the event and reflected good advertising. The company confirmed that it had a range of private number plates for its company vehicles to further advertise the brand but that it did not perceive any of them to be in breach of the Codes.
The company then refuted the complainant’s point that the Cannon Run was a ‘drag race’ and stated that the event was for supercar owners to network and drive their cars on scenic routes. The company explained that all events were controlled and organised and that the organisers ensured all attendees were high net worth individuals and that all events required drivers to be breathalysed before participating.
The company then addressed the specific rules the complainant believed the sponsorship to be in breach of. With regards to rules 3.3 and 3.4, the company stated that the Cannon Run event was not aimed at under-18s as it was a luxury supercar experience company and that the ticket price started at £3,000, a cost it believed would not have particular appeal to under-18s. Additionally, it stated that the branding stickers on the vehicles that took part were not aimed at under-18s.
In response to rule 3.7, the company explained that it worked hard to showcase a classy, luxury brand and did not encourage dangerous or aggressive behaviour. The company stated that it would be detrimental to its brand if it did so.
With regard to rule 3.9, the company stated that it only sponsored the event in order to put the company branding on the vehicles. The company explained that there was no drinking whilst driving, events were police supervised, and that drivers were breathalysed before participating. In response to the evening parties, the company explained that these events were moderated and that because people drove the next day, the events were usually low-key.
In response to rules 3.10 and 3.11, the company stated that it only offered samples of the product in bars and at wholesale events in order to comply with UK regulations.
The Panel’s assessment
The Panel began by noting that the sponsorship between Jatt Life and The Cannon Run was well documented on social media and included videos on the producer’s Instagram page, its YouTube channel and on The Cannon Run’s official YouTube channel. The Panel noted that while the videos fell outside of the Portman Group’s regulatory remit and were instead captured under the remit of the Advertising Standards Authority, the Panel agreed that the footage provided evidence of the behaviour and activities taking place during the Jatt Life sponsored Cannon Run and were indicative of how the sponsorship was enacted. The Panel also noted that while some of the event took place abroad, the sponsorship agreement was between two companies based in the United Kingdom and that the event, and its related activities, were primarily marketed towards UK consumers.
The Panel discussed the formal sponsorship agreement between JL Drinks and The Cannon Run, particularly in relation to Code rule 3.1 which required as part of any sponsorship agreement that all drinks companies ensured there was a recognisable commitment to promoting responsible drinking and/or supporting diversionary/ community activities; taking into account the size, scale, reach, and length of the sponsorship. The Panel considered that the sponsorship was of medium size and the international element of the event, along with well-documented social media videos of the event, meant that it had a medium size reach. The Panel agreed that the sponsorship in and of itself was likely to be acceptable under the Code and that the Code did not prevent alcohol producers from sponsoring events with motorcars or placing company branding on vehicles. However, the Panel noted that there was no clause in the sponsorship agreement between JL Drinks and The Cannon Run that addressed the promotion of responsible drinking, nor did it reference anti-drink drive messaging which it deemed was essential as part of a sponsored event linked to driving. Accordingly, the Panel upheld the complaint under Code rule 3.1.
The Panel discussed the producer’s response and specifically the claim that it did not sell miniatures to consumers and encouraged the product to be sipped and enjoyed. The Panel noted in one video available on YouTube (title: “Keeping Up with The Cannon Run on Spring Break 2021 – Part 1”, published 18th April 2021), that there was footage which showed miniature bottles of Jatt Life being handed out by the owner of the company from the boot of a car in what appeared to be a public car park. While the Panel noted that this appeared on The Cannon Run’s YouTube channel, the Panel considered that it depicted the direct actions of the producer as part of the sponsorship activity. Due to the nature of the giveaway, the Panel noted that there were no apparent checks on individuals who were being given the product, for instance to check if they were intoxicated, nor was there any evidence of an age identification process. The Panel discussed the definition of sampling in the Code and noted that it was an offer of a free alcoholic drink, to members of the public in a public place. The Panel considered that the footage appeared as though the event was held in a public place and would therefore be captured by the definition. The Panel considered that the activity breached rule 3.10 as the sampling did not comply with current licensing legislation.
The Panel discussed further footage from the producer’s social media owned content which showed scenes of partying after participants had finished driving for the day. The Panel agreed that as most of the videos appeared on the producer’s own social media channels, the activity was reflective of the wider behaviour being condoned and encouraged as part of The Cannon Run sponsorship. The Panel considered that some of the footage showed chaotic scenes which featured the free-pouring of vodka from the bottle (title: “Jatt Life – Cannon Run”, published 4th May 2021) and scenes of alcohol being consumed around a swimming pool (title: “The Jatt Life Journey – EP6 – Cannon Run – Marbs Madness”, published 15th September 2021) which the Panel considered were examples of the event encouraging irresponsible and immoderate consumption of alcohol. While the Panel noted that sampling could involve the giving away of entire bottles of alcohol, it noted there was no evidence that the bottles had been given away for free by the producer in contrast to the miniatures in a previous video. Accordingly, the Panel did not uphold the complaint under Code rule 3.11. The Panel also considered that at a multi-day event where participants drove between locations, it was irresponsible to consume the amount of alcohol shown where participants would be driving the next day. Accordingly, the Panel upheld the complaint under Code rule 3.9.
The Panel discussed an Instagram post by the producer (caption is: “The Cannon Run – Fuelled by Jatt Life”, published 26th October 2021) which depicted an individual driving a supercar with a voiceover describing a fuel shortage. During the video the car ran out of fuel and came to a stop, the individual then sat down by the side of the road with a bottle of Jatt Life and, before taking a drink directly from the bottle, paused, and decided to fill the car fuel tank with Jatt Life which ignited the engine and the individual drove away. The Panel acknowledged that the lid was not removed from the bottle but considered that the post further linked the Jatt Life sponsorship of The Cannon Run with alcohol and irresponsible behaviour albeit in a light-hearted manner. Whilst the Panel noted that the producer did not directly encourage the act of drink-driving the Panel concluded that it was irresponsible to link alcohol and driving indirectly by suggesting that an individual may have consumed alcohol and then resumed driving of a vehicle and found the activity in breach of Code rule 3.9.
The Panel then considered how the partying scenes tied into the brand image of the company. The Panel noted in one producer posted video an individual said “If you ain’t drinking Jatt Life then you ain’t living life” (title: “Jatt Life – Cannon Run”, published 4th May 2021.) The Panel considered that the overarching message in this particular video was that by not drinking Jatt Life, then an individual was not part of the party or social scene and breached Code rule 3.13 for implying that alcohol enhanced social success.
The Panel also considered an Instagram video on the producer’s brand page (caption is: “Introducing @boogystigz getting us ready for the Spring Break cannon run next week! It’s going to be one to remember! Jatt Life Baby!”, published 4th April 2021) which featured people wearing racing suits and crash helmets dancing poorly. The individuals were then handed Jatt Life to drink in a tongue in cheek manner through their closed helmets and the dancers were then able to do back flips and more elaborate break-dancing moves. The Panel considered it was irresponsible to show people in race-driving attire consuming alcohol and noted that while they were not seen driving a vehicle or genuinely consuming the alcohol, it was inappropriate to make a direct link between alcohol and driving and also found the activity in breach of Code rule 3.9. The Panel further considered that the video reflected the sponsorship message that drinking Jatt Life could enhance an individual’s athletic performance, which also breached Code rule 3.13.
The Panel also considered that there were scenes that showed bravado during the sponsorship, such as a man pretending to headbutt the camera whilst standing next to the owner of the company (title: “The Jatt Life Journey – EP6 – Cannon Run – Marbs Madness”, published 15th September 2021) which the Panel considered was in contravention of Code rule 3.7. In the same video, the Panel noted an individual smoking marijuana and accordingly upheld the complaint about the sponsorship for condoning anti-social behaviour under Code rule 3.7. Finally, the Panel also considered that the scenes which depicted alcohol consumption by the swimming pool as part of the sponsorship videos reflected dangerous behaviour that had been condoned by the company as part of its filming and also upheld the complaint about the activity under Code rule 3.7.
The Panel noted that some of the videos featured people who were drinking alcohol that appeared to be under-25 and that there were some young children at the pool party referenced above. The Panel considered that it was irresponsible to feature those who appeared under-25, including children, in a significant role and therefore concluded that the sponsorship breached Code rule 3.12.
The Panel then discussed whether The Cannon Run had a particular appeal to under-18s or if the company had placed its brand name or logo on merchandise which had a particular appeal to under-18s. The Panel considered that The Cannon Run was an event for supercar owners and thus, would have broad appeal to all age groups. The Panel considered that nothing in the agreement, or in the wider marketing of the event suggested there was sponsorship of individuals, activities, teams, events, tournaments, competitions, bands or celebrities that had a particular appeal to, or were primarily aimed at under-18s. The Panel therefore concluded that in respect of Code rules 3.3 and 3.4 that the sponsorship was not in breach.
The Panel considered rule 3.8 and whether the producer was sponsoring an event associated with sexual activity or sexual success. The Panel discussed the scenes at the pool party in one of the videos as evidence. The Panel concluded that whilst they were uncomfortable with some of the activity shown, it did not amount to a suggestion that there was a link between the event and sexual activity or success and did not uphold the complaint about the sponsorship under Code rule 3.8.
In summary of the above, the Panel therefore upheld the complaint in respect of Code rules 3.1, 3.7, 3.9, 3.10, 3.12 and 3.13. The Panel did not uphold the complaint in respect of Code rules 3.3, 3.4, 3.8 and 3.11.
Action by Company:
To be confirmed.