Silent Pool Distillery
26 November 2020
Considered under the 6th Edition of the Code.
“I’ve just come across Silent Pools new CBD gin “Colorado High” which is clearly making reference to “getting high” on an alcoholic product! Even the picture on the front looks hallucinogenic..”
Portman Group acting in lieu.
Under Code paragraph 3.2(c):
3.2(c) A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with, acceptance of, or allusion to, illicit drugs
Under Code paragraph 3.2(j)
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 it had sold over 2000 bottles without any negative feedback that any consumers believed the product name referred to an illicit drug. The company also added that it exported the product to three countries within the EU and had never received a complaint. The company stated it did not believe the product was in breach.
The company explained the CBD came from Colorado USA, and one of its unique features was that it was grown at an altitude over one mile above sea level. The company pointed out that Denver (capital of Colorado) was known as the ‘Mile High City’. The company said this location and altitude ensured the highest quality ingredient – free from pollution, using pure mountain water, and enjoying Colorado’s 300 days of sunshine.
The company stated that the purity of raw materials was a key part of the marketing to health-conscious consumers who believed CBD had health and wellbeing benefits. The company said it had drawn on their location assets to amplify the point. They said the Colorado High referred only to the location and nothing else.
The company stated CBD had no hallucinogenic effects and was not an illicit drug. The company also stated it was widely marketed and sold in a range of products, with various concentrations and applications.
The company said CBD was widely believed to enhance overall body wellness enhancements; it had referred to that view but did not suggest it had any other effect. The company said it did not hide the fact that the product contained CBD as CBD was not an illegal or proscribed product.
The company stated it had not used the name ‘cannabis’ or any other illicit drug name, nor had it drawn comparisons or associations to illegal drug use. The company said it focused on the pollution free nature of the CBD.
The company explained the ‘High Plains Snifter’ cocktail recipe was a play on the 1973 film ‘High Plains Drifter’. The company stated the High Plains were in Colorado and did not draw a connection with an illicit hallucinogenic drug; there were plenty of other movies it could have made the connection with if it had wanted to.
The company sent a photo which inspired the artwork. The company said the colours in the illustration sought to stylise the Autumn colours in the photograph of the famous Colorado scene. The company said it had not taken an abstract drug induced scene but had sought to anchor the product in messaging around pure, clean, high mountain peaks, an allusion to the product name.
In response to the Panel’s provisional decision, the company stated that it was concerned that the foundation of the Panel’s concern seemed to be that CBD was an illegal or illicit substance when it was not. The company stated that CBD was freely and widely available because there was no evidence that it had any negative impact and modest evidence that it had a positive impact. The company highlighted that while CBD fans and consumers believed CBD had health benefits, that was a personally advocated view rather than a clinical truth. In short, the company stated that there was no identifiable consumer harm from the product that the public needed to be protected from.
The company went on to address some of the points made in the Panel’s provisional decision. The company reasserted that the mountains and lake were a stylised version of a famous view and the distorted view through the artist’s eyes did not make it ‘hallucinogenic’.
The company noted that the Panel appeared to be using a dictionary definition of ‘high’ which rested on intoxication or euphoria, states that would be far greater than CBD would cause. The company suggested that the briefing note the Panel received was bias as it tried to link CBD to cannabis.
Notably the company stated that the back-label wording was deliberately very broadly cast, to effectively be meaningless. The company stated that it did not claim to suppress or enhance anything, instead it talked about balance, whatever that was for a person and left the consumer unaltered.
In conclusion, the company claimed that the Panel had made assertions as to whether consumers would infer therapeutic benefits from CBD and that this was not proven.
The Panel’s assessment
The Panel first considered whether the packaging suggested an association with illicit drugs.
The Panel understood that cannabis was an illicit drug in the UK but that CBD was not. They noted the packaging referred to CBD and hemp but not to cannabis.
Some Panel members thought the image of the mountains and the lake, with stylised rainbow colours, had a hallucinogenic feel but the Panel considered, on balance, that the image was not a problem in itself. The Panel acknowledged that the producer intended the product name to refer to the location and altitude of the place where the CBD was produced. They also noted, however, that Colorado was one of the first states in the US to decriminalise recreational cannabis and that ‘high’ was commonly associated with drugs. The Panel considered that these elements might be acceptable, individually, in some contexts but concluded that on this packaging, the cumulative effect of the image, the reference to Colorado and the word ‘high’ created an indirect association with illicit drugs. The Panel therefore concluded that the product breached Code rule 3.2(c).
The Panel was also concerned that the packaging implied the product had therapeutic qualities. The Panel noted that the back label of the product stated ‘A sensory infusion of wellness-enhancing CBD and refreshingly complex gin …’ and ‘Colorado High is a spirit that supports your body’s natural balance and tastes great doing so’. The Panel discussed the company’s response to the provisional decision and considered that there was a distinction to be made between the legality of CBD, which was not an issue, and any suggested therapeutic effects. The Panel was of the view that that the packaging did convey a health benefit by stating that it was ‘wellness-enhancing’. The Panel considered these claims were clear and explicit claims that the product had therapeutic qualities and accordingly upheld the complaint under Code rule 3.2(j).
The Panel then discussed the product descriptor ‘CBD Gin’ and questioned whether it was acceptable to include ‘CBD’ in a product description on packaging containing alcohol. The Panel noted CBD was widely marketed as providing pain relief or other health benefits. The Panel was concerned that consumers were therefore likely to infer that an alcoholic product containing CBD had therapeutic benefits, even in the absence of explicit claims about health or wellbeing.
The Panel considered that producers should give consumers information about the inclusion of CBD as an ingredient, if it was present, but could convey that without referring to CBD in the product name. After carefully considering the risk that consumers would infer therapeutic qualities, the Panel concluded on the basis of the evidence in this case that products containing CBD should name it as an ingredient but should not incorporate CBD into the name of the product or the product descriptor or feature it prominently on their packaging.
The Panel considered that including CBD in the product descriptor, immediately below the brand name, amounted to an implicit claim of therapeutic qualities. The Panel concluded that the description ‘CBD Gin’ on the front of the bottle, as well as the claims about wellbeing elsewhere on the packaging, breached Code rule 3.2(j). The Panel urged caution to companies that marketed health and wellness products and stressed the need to avoid suggestions that such products had therapeutic qualities.
The Chair directly responded to the company’s allegation that the Panel had received bias advice by linking CBD to cannabis. The Chair sought to remind the company that the complainant, company and the Panel all received the same list of documents for consideration and the company had been given sight of this before the meeting. The Chair noted that the Panel had received the complaint, the producer’s response, previous similar Panel decisions and publicly available guidance under Code rule 3.2(j). The Chair strongly refuted the suggestion that the Panel was not independent.