“We have had the below concerns raised to our department via another Police
Officer regarding the labelling of the following drinks: Tiny Rebel which uses images of what looks like a teddy bear on the box [redacted] Given that they are both the same size as standard can of coke adds to our concerns around the appeal to under 18s. The drinks were out of reach to children” These drinks were seen in Sainsbury’s in Warlingham CR6 9DY’’
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(e)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that consumption of the drink can lead to social success or popularity.
Under Code paragraph 3.2(h)
A drink, its packaging or promotion should not have a particular appeal to under-18s (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators)
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.
The Company’s Submission
The company said that, after receiving similar complaints from two members of the public in 2017 and 2019, it felt the need to undertake its own due diligence and determine whether the artwork and labelling on its 330ml beer cans were in breach of the Code, specifically paragraphs 3.1 and 3.2(h).
The company said that, at the start of 2020, they had appointed an independent Market Research Company. A sample group was obtained through Panelbase and comprised 150 respondents aged 5-9, 154 respondents aged 10-15, 600 respondents aged 16-17 and 603 respondents aged 18+. The company noted the sample group was far larger than the two complainants who had complained about Cwtch in 2017 and 2019 and the single complainant who had complained about Clwb Tropica and Cali Pale Ale.
The company said the research addressed the appeal of the Tiny Rebel bear logo, the clarity of the can contents, labelling terminology, category confusion and the overall drivers of can appeal. The company said that, based on the market research, it was indefinitely satisfied that its corporate ‘bear logo’ did not have particular appeal to under 18s and did not breach code paragraph 3.2(h).
The company sent a report from the market research agency. The report began by summarising the Panel’s decisions on previous complaints about beer products offered by Tiny Rebel and other companies. It then outlined the objectives of the research, which it said were ‘to understand the specific appeal of its can’s design, and the wider drinks category, among the UK population (comparing under 18s and adults). It said the two primary objectives of the research were, firstly, to understand the overall design appeal of the company’s products and other brands and whether there was any confusion between alcoholic and non-alcoholic drinks.
Secondly, to understand whether two of the producer’s products (including Clwb Tropica) had ‘particular appeal’ to under 18s, in the context of other similar brands in the category. It said that, in order to be able to make a comparative assessment for this research, the researchers had defined a meaning for ‘having a particular appeal to under 18s as ‘that the brand being considered is rated more positively by under 18s compared to those aged 18 or over’.
In a section headed ‘methodology’, the report stated that the research was conducted using an online survey among 1504 UK consumers, including 5-15 year-olds (with permission from parents obtained for participation and the option to complete the survey together), 16-17 year-olds and 18+ year olds. It said some of the questions within the survey needed to be amended or excluded from being asked of under 18 year olds, to comply with the Market Research Society Code relating to interviewing children in relation to alcohol. It said the researchers were however able to ask under 16s about the designs and appeal generally, having first removed any references on the cans to alcohol. It gave the dates when the fieldwork was carried out and stated that it utilised various advanced techniques including: a virtual shop shelf with images of 330ml beer, ale, IPA and cider cans to determine the overall appeal of their designs; images of drink cans (alcoholic and soft drinks) to understand which drink category respondents felt they belonged to, based upon their design; ranking questions to determine particular design appeal; an open-ended question to determine the reason for particular appeal of the cans used in the study; specific questions relating to a Tiny Rebel product (not Clwb Tropica) vs similar brands; and specific questions relating to the Tiny Rebel ‘bear logo’ and how it was perceived. It said 19 beer/ale/IPA cans, 1 cider and 8 non-alcoholic designs of can were tested in the study.
A section titled Executive Summary stated that key findings from the research showedthat:
- over 60% of the cans included in the study, both alcoholic and non-alcoholic, were mis-classified by 16-17 year olds, who said they did not know what was in them
- terminology was important, as around 90% of 16-17 year olds knew the meaning of terms such as ‘beer’ and ‘cider’, with slightly less (c.>63%) understanding the terms ‘lager’ or ‘ale’. However even the term ‘beer’, which 90% of 16-17year olds said they understood, could be confusing: ginger beer, a non-alcoholic drink, was categorised by 16-17 year olds as alcoholic, clearly demonstration [sic] a confusion with ‘traditional’ terminology
- hardly any (only 16%) 16 to 17 year olds understood the term IPA. Cans that showed IPA as a product descriptor did not assist 16 to 17 year olds understand that product contained alcohol further confusion arose where alcoholic drinks referred to fruit, water or milkshake. These terms were traditionally linked to soft drinks.
- Colour had, by far, the strongest appeal to under 18s and over 18s.
The Executive Summary continued by saying that there was a high level of confusion in the canned drinks category (alcoholic & non-alcoholic) amongst under 18s, and this was not limited to just one brand. Clear descriptors on the front of cans were important, and could help, but did not guarantee that under 18 year olds wouldunderstand the content of the can. Both the alcoholic and non-alcoholic drinks categories were using brighter and bolder designs, cartoons, references to fruit and as a whole were confusing to 16 to 17 year olds.
The report stated that, based on this research, the researchers recommended the panel needed to take into context the entire category, the other competitor brands that the researchers believed clearly “breached several of the codes”, and the fact that Tiny Rebel’s products were clearly appealing designs to all but were not isolated. The executive summary went on to state that, based on initial impressions on the shop shelf, their research showed that:
- Among under 18s and those aged 18 and over, there was little variation in the most appealing can designs
- Five out of the six most preferred can designs were common to both 16 to 17 year olds and those aged 18 and over
- The two Tiny Rebel products included in the research (which included Clwb Tropica) were both appealing designs (in the top 6) but they were equally appealing to both age groups.
It said, looking at the key features that drove appeal, the research found that:
- Colour was the primary driver of appeal across under 18s and those aged 18 and over for all brands
- But colour alone was not the only driver of preference: a clean and clear design and imagery also drove appeal
- The bear logo was not mentioned spontaneously as a reason for liking one Tiny Rebel product (not Clwb Tropica) by 16-17 year olds
- 304 children aged 5-15 did not consider the Tiny Rebel bear to be teddy bear like and actually were more likely to agree it was more adult like, scary, mean, and rebellious. This was a view agreed with by 1,203 16 – 17 and 18+ year olds who were more likely to say the bear was scary, adult in design, rebellious, hard, mean, edgy, or graffiti/urban. The researchers concluded that the bear was not ‘particularly appealing to children’, as it was not particularly cuddly or friendly, which they said were the key attributes of a teddy bear.
Under the heading ‘overall conclusion’, the executive summary stated that bright colours and interesting imagery were a common theme among brands in the category and were used extensively by brands to create ‘shelf appeal’. Whilst there was no doubt that the Tiny Rebel products included in the research did have very appealing designs, to the credit of the designers, they did not stand out as having ‘particular appeal’ to under 18s, especially when all aspects of the can were considered together.
The report said no one attribute determined whether a can was appealing or not: in many cases it was the colour, but in some cases, it was the clean and clear design and in others, the imagery, or the font. The report said most of the alcohol brands in the study appeal equally to those aged 18 and over and those aged under 18, based on the can design.
The report said the research found that many brands did not clearly specify they contained alcohol on the front of the can, and noted that, out of 20 products, the two Tiny Rebel products (including Clwb Tropica) were two of only four products to clearly state their alcoholic content on the front of the can. It said many brands did mention a descriptor (IPA, beer, cider, lager or ale) as part of their name, but for many 16 to 17 year olds these descriptors were not well understood. The report said that, to add to the confusion, many of the brands used reference to fruit, milkshake and cartoons, all of which were traditionally more child related. It said Clwb Tropica did not make reference to fruit, milkshakes nor cartoons.
The Executive Summary concluded by stating that, based on this research, Clwb Tropica did not show to have a ‘particular appeal’ to under 18s, it appeared to have universal appeal. It said the research did not find the Tiny Rebel bear logo to be particularly appealing to children nor having the typical attributes of a child’s teddy bear. It said what the research did show was a huge confusion in the entire category, many brands clearly breaching the code and using child-like references, and terminology being confusing to the younger ages generally. The researchers recommended that any decision the Panel made with regards to Clwb Tropica needed to consider the category as a whole, to recognise that it did clearly state its alcoholic content on the front of the can. The report also said it was clear decisions on specific ‘child-like’ appeal were subjective and the view of the individual, and recommended any decisions relating to Clwb Tropica take the findings of this research into account, and in the context of the whole category to avoid any unfair discrimination.
The report went on to describe the findings in more detail. The report included findings of ‘shop shelf’ research, in which participants were shown two of the company’s products amongst other alcohol products in cans on a digital ‘shop shelf’ and asked to select up to five of their favourite designs. This research found that the Clwb Tropica 330ml can ranked as the fourth most appealing design for 16-17 year olds and the fourth most appealing design for over 18s. The report stated the research showed that there was very little variation in the appeal of can designs between age groups; the researchers suggested the Clwb Tropica 330ml can was not seen as particularly more appealing to under 18s as it was to those aged 18 and over.
One section of the research focused on the appeal of Clwb Tropica (and another of the company’s products), in comparison with products made by other companies. The report stated that, based on initial impressions on the shop shelf, the research showed
- Among under 18s and those aged 18 and over, there was little variation in the most appealing can designs
- Five out of the six most preferred can designs were common to both 16 to 17 year olds and those aged 18 and over
- Clwb Tropica was an appealing design (in the top 6) but was equally appealing to both age groups.
The report included a section on the appeal of the Tiny Rebel bear logo. It said the bear logo was not mentioned spontaneously by 16-17 year olds or 18+ year olds as a reason for its appeal. The report said the researchers, in addition, asked all age groups their views about the bear/logo to ascertain if it would be more likely to appeal to children. Due to the fact that they were interviewing young children they had to devise two questions, one that teenagers and adults answered, and another simpler version for the younger age group.
The participants aged 16-17 and 18+ were asked ‘when looking at the logo below, and for each of the following pairs of words, where would you place the logo design for each one?’ Respondents were asked to place the logo on a 7-point ‘bookend’ scale, (ie 4 was neutral). The terminology was alternated, so that not all the child-like themes or all the adult-like themes were on the same side of the bookends. The findings were:
- ‘cuddly’ (1) vs ‘scary’ (7): 4.92;
- child-like design (1) vs adult-like design (7): 4.26;
- ‘rebellious’ (1) vs ‘timid’ (7): 2.86;
- ‘hard’ (1) vs ‘soft’ (7): 3.14;
- ‘sweet’ (1) vs ‘mean’ (7): 4.85
- ‘edgy bear’ (1) vs ‘teddy bear’ (7): 2.63
- Traditional/classic’ (1) vs ‘graffiti/urban’ (7): 5.78
The researchers separately ran a simpler version of the question for the younger age group 5-15 year olds to obtain their opinion on the Tiny Rebel bear logo. In this question there were only four categories, and these were simplified to a 3-point scale. Participants were asked: ‘do you think the bear in the picture is …’
- more for children (32%); for everyone (32%); more for grown ups or adults (36%)
- more mean (38%); neither (35%); more cuddly (27%)
- good bear (27%); neither (25%); naughty or rebellious (48%)
- more like a scary bear (44%); neither (20%); nice and friendly bear (36%)
The report concluded that adults did not feel the Tiny Rebel logo was like a teddy bear and the results among children appeared to agree. It said the researchers could not see any clear indication that the Tiny Rebel logo on the can made the drink ‘particularly appealing’ to children or teenagers.
The Panel’s assessment:
The Panel discussed the research report submitted by the company in response to the complaint and noted that it had been conducted by Beehive Research in April 2020 and subsequently amended in March 2021. The Panel discussed the market researchand stated its disappointment that the company had not submitted the raw data behind the research report that the Panel had requested prior to the meeting. The Panel stated that it had wanted to review the raw data to formulate its own assessment of the research in context and was concerned that the report did not reflect all the outcomes of the research. The Panel noted that in most pieces of market research a formal written report would be accompanied by the raw data that sat behind it. For instance, every question that was asked as part of the research piece and the corresponding data. The Panel noted that in some analysis of research the participant selection, confounding factors such as weighting, confidence intervals and the statistical significance of the data would also be reviewed.
The Panel noted that the research was based on one sub-category of the alcohol market and did not represent the wider market that the products sat within when considering product packaging. The Panel acknowledged that large parts of the research report compared the company’s products to similar products on the market. Whilst acknowledging these sections, the Panel stated that it could only rule on the product that was subject to complaint and could not make any judgements on the other products that were referenced in the report.
After discussion, the Panel agreed that it could still consider the product in its entirety under the Code and would refer to the research report with caution.
The Panel discussed the Clwb Tropica can at the same meeting as the Clwb Tropica Four Pack, which had received a separate complaint from a different complainant.
Code Rule 3.1
The Panel first considered whether the product communicated its alcoholic nature with absolute clarity. The Panel considered the overall impression conveyed by the product packaging and the number of ‘positive’ alcohol cues in relation to the number of ‘negative’ alcohol cues, in line with Portman Group guidance. The Panel noted that the front of the can featured a text box that read ‘TROPICAL IPA 5.5% ABV’, which was well demarcated and prominent on the front and centre of the can, with clearly legible white text on a black background. The Panel considered that ‘5.5% ABV’ was a strong ‘positive’ cue that the product contained alcohol. The Panel considered that IPA was widely recognised by beer drinkers as an alcoholic signifier but that it was potentially less well understood by consumers outside the target market. The Panel discussed the research report submitted by the company and noted this view was supported by the research report, which reflected that only 16% of 16–17-year-olds understood the term “IPA”, which was significantly lower than the proportion of 16–17 year-olds who knew what “ale” meant. The Panel re-emphasised the previous caution it had stated at the beginning of the discussion about the research report and also noted that the can did not heavily feature language strongly associated with beer by general audiences, such as ‘brewery’, ‘beer’ or ‘ale’, and considered that the product could make the alcoholic nature of the drink more conspicuous by including unambiguous references to beer that the majority of consumers were likely to understand.
The Panel discussed the complainant’s concern that the 330ml can format was commonly used for soft drinks and considered whether there were any other ‘negative’ cues that suggested the product was non-alcoholic. The Panel noted that the can included references to ‘TROPICAL’, on the front of the can, and ‘NOSE: MANGO/PINEAPPLE’ and ‘TASTE: TROPICAL’ on the back of the can, and considered that references to fruit tastes that could be associated with soft drinks, particularly when considered alongside the product name ‘Clwb Tropica’. The Panel also noted, however, that the back of the can featured alcohol-related health information, including the pregnancy warning logo and the unit content of the can, as well as legally required information such as ‘ALC 5.5% VOL’.
After a lengthy discussion, the Panel considered that the fruit references were not so prominent that they outweighed the positive alcoholic cues on the can and concluded that an average consumer was still likely to ascertain that the product was alcoholic.
When considering the overall impression created by the product, the Panel found that the clear statement ‘5.5% ABV’ on the front of the can, together with the alcohol-related health information and legal labelling information on the back of the can were sufficient to communicate the alcoholic nature of the drink with absolute clarity. Accordingly, the Panel did not uphold the product under Code Rule 3.1.
Code Rule 3.2(h)
The Panel then discussed whether the product had a particular appeal to under-18s. The Panel noted the research report defined ‘particular appeal’ as meaning ‘that the brand being considered is rated more positively by under-18s compared to those aged 18 or over’ but the Panel did not agree that that was the key test to determine particular appeal to under-18s. The Panel considered that particular appeal was not a question of quantity (i.e. appealing to more under-18s than over-18s) but rather a question of the way in which a design appealed (i.e. packaging that appealed to or resonated with under-18s in a way that it did not with over-18s).
The Panel considered that the design featured bright colours with splashes of white, a product name and an overall design feel that, on the face of it, could be seen to resemble soft drink packaging. The Panel considered, however, that the colour scheme was not overly vibrant and reflected the edgy marketing that the company was likely aiming for. The Panel noted that the overall design was based on an 80s Club Tropicana nostalgia-theme and that this was particularly noticeable in the font and colour choice. The Panel debated the ‘particular’ aspect of Code Rule 3.2(h) and stated that the link with 80s nostalgia meant that the product was likely to resonate with an adult market.
The Panel noted that the can featured the company’s corporate logo, a drawing of a stuffed bear, next to the product description on the front of the can. The Panel discussed the two previous precedents where it had had discussed the bear logo as part of a complaint consideration: namely the Cwtch (2017) and Cwtch (2019) decisions. The Panel noted that on both occasions Cwtch was found to be in breach of the Code and that the bear logo had been a contributary factor in creating a particular appeal to under-18s when considered alongside the design of a bubble font and bright primary colours.
The Panel acknowledged that the bear was the producer’s corporate logo and considered that it did not necessarily breach the Code, in itself, but that it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance.
The Panel discussed the research report submitted by the company and re-iterated its caution about relying on its results. The Panel discussed the section of the report that focused on the bear logo and noted that in the younger age group of 5–15-year-olds only 36% of respondents thought the bear logo was ‘more for grown-ups or adults’ as opposed to groups which included children. The Panel also discussed the fact that the context in which the group had been shown the bear logo was not clear and was therefore unsure whether it was shown in isolation or as part of colourful packaging with other design elements which may have resulted in different outcomes.
The Panel stated that, as always, it was imperative to consider the overall impression of the product and that the impact of the bear logo depended on its size and context, including the presence of other design elements that may have a particular appeal to under-18s and/or a design that focused attention on the bear. The Panel carefully considered whether the bear logo was an element creating particular appeal to under-18s in the context of the Clwb Tropica can. The Panel considered the adult-based 80s nostalgia Club Tropicana theme, the fact that the product communicated its alcoholic nature with absolute clarity and noted that the Clwb Tropica can did not feature other design elements that held a particular appeal to under-18s, particularly when combined with the bear logo. The Panel also considered, that in this particular context, the bear was not so prominent in the overall design that it was likely to create an overall impression which would have a particular appeal to under-18s.
After considering the name, imagery, colours, 330ml can size in combination with the the bear logo, the Panel considered that the overall impression did not have particular appeal to under-18s and accordingly did not uphold the product under Code Rule 3.2(h).
Code Rules 3.2(e) and 3.2(j)
During discussion, the Panel noted that the back of the can featured the phrase ‘Clwb Tropica a party in a can’. The Panel discussed whether this could suggest that consumption of Clwb Tropica could lead to social success or change mood or behaviour. Some Panel members were concerned that ‘party in a can’ equated the beer with the party. However, the Panel noted there were no other ‘party’ references on the can. The Panel considered that the phrase could be problematic, if it featured more prominently or was combined with other elements to make it a strong theme in the product branding. In this case, however, the Panel considered that the presentation of the phrase on this can did not breach Code Rules 3.2(e) or 3.2(j).
Action by Company: