Marks and Spencer plc
“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.”
Member of the public
Under Code paragraph 3.1
The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.
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
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.