Company: Wells & Young’s Brewing Company Ltd
Final Decision: 12 January 2017
Considered under 5th Edition of the Code.
‘This product, once opened cannot be resealed and is typically consumed by one individual. The number of units in one can is in excess of the governments daily recommended guidelines of 2 – 3 units a day for a woman and 3 – 4 units for a man. It is my belief the production of Crest Super 10% in a 500ml can that cannot be resealed and containing 5 units of alcohol in excess of the government’s daily unit guidelines breaches 3.2(f).’
Medway Council (Public Health Directorate)
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
The company’s submission
The producer began by saying that Crest Super 10% was produced exclusively for export and was never intended for the UK market and their policy was not to sell it in the UK; and, as such, was not subject to the Code because it was not produced for sale and consumption in the UK. The producer went on to say that wording on the packaging reinforced that the product was for export only. The producer said it had investigated and identified the customer it believed was responsible for supplying Crest Super to UK retailers; and, the last known supply to that customer was June 2015, which meant that the ‘best before’ date on product shipped to that customer was 23 June 2016.
The Panel’s assessment
The Panel welcomed the action the producer had taken to identity the customer responsible and to cease any further supply to it. However, it noted that although the producer had done its best to provide an assurance that Crest Super with a ‘best before’ date later than 23 June 2016 would not be found in the UK market, a product with a ‘best before’ date of 26 November 2016 was found for sale in the UK and, as such, the product was within the remit of the Code.
The Panel first considered whether the product encouraged “immoderate” or “irresponsible” consumption and how the Code should be interpreted; in particular the meanings of “immoderate” and “irresponsible”. The Panel agreed that the Code is principles based and for that reason immoderate and irresponsible consumption is not precisely defined within it. Accordingly, in interpreting the Code the Panel must apply those terms in a common sense way, doing so in the light of all factors that it considers relevant to the circumstances of each case. The Panel is also entitled to take account of current attitudes and norms including any relevant Government and other reputable sources of guidance about the parameters of moderate drinking. Ultimately, however, it is for the Panel to make its own assessment as to what those parameters are, and whether or not the packaging of a particular product encourages (whether directly or indirectly) the exceeding of those parameters.
When addressing whether or not a particular amount of alcohol consumption should be regarded as immoderate, one of the reference points to which it was proper for the Panel to have regard was the CMOs’ guidelines. The Panel discussed that the CMOs’ guidelines were not equivalent to legislation. Nevertheless, the guidelines come from an authoritative source and it is right that the Panel has regard to them as a source of guidance and insight. The Panel noted that the complaint was based on the CMOs’ 1995 guidelines, which had been superseded. The new 2016 Low Risk Drinking Guidelines stated that “To keep health risks from alcohol to a low level it is safest not to drink more than 14 units a week on a regular basis. If you regularly drink as much as 14 units per week, it is best to spread your drinking evenly over 3 or more days. If you have one or two heavy drinking episodes a week, you increase your risks of death from long term illness and from accidents and injuries ….”.
In relation to single occasion drinking episodes the Guidelines specified no limit, but stated more generally that “The Chief Medical Officers’ advice for men and women who wish to keep their short term health risks from single occasion drinking episodes to a low level is to reduce them by: limiting the total amount of alcohol you drink on any single occasion; drinking more slowly, drinking with food, and alternating with water; …”.
The expert Guidelines Development Group, which advised the CMOs, had recommended against a daily guideline because most people do not drink every day, and on the basis that the differences in short term risks faced by different people drinking the same amount can be so wide, and because the actual risk faced by any particular person can also be substantially altered by a number of factors; including, how fast they drink, prior knowledge about how alcohol tends to affect their skills and inhibitions, how safe their environment is, and any plans they have made in advance to reduce their risks (such as staying around someone they can trust and planning safe transport home). However, the Group did identify a substantial increase in risks with amount consumed; stating that “…there is a many-times increased risk of injury seen when drinking around 5-7 units (within the preceding 3-6 hours)”.
The Panel also noted that the current CMOs’ guidelines did not put forward a daily or single occasion drinking guideline, and the Panel could not infer from the evidence presented to the CMOs by the Guidelines Development Group that 5 units only, drunk on a single occasion, was an immoderate (whether because of increased risk to health or safety or otherwise) level of drinking.
The Panel was of the view that cans of Crest Super 10% 500 ml are likely to be viewed by consumers as an option for regular day-to-day consumption, and that the sale of the product in non‑resealable 500ml cans containing 5 units of alcohol is certainly likely to lead to consumers drinking 5 units of alcohol on a single drinking occasion. The Panel went on to acknowledge that while the Guidelines Development Group had identified that there was a risk of injury if consuming 5-7 units within the preceding 3-6 hours, the Panel had no evidence that would mean it could conclude that more than one can of Crest Super was being consumed in a single drinking occasion, or within the time period set out in the guidelines.
The Panel therefore concluded that there was insufficient evidence to find a breach of Code paragraph 3.2(f).
Action by the company
No further action required.
 UK Chief Medical Officers’ Low Risk Drinking Guidelines, August 2016: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/545937/UK_CMOs__report.pdf
 Ibid, paragraph 14
 Ibid, paragraph 26