24 October 2019
Considered under the 6th Edition of the Code.
“Went into my local Waitrose in Caldicot Monmouthshie and was shocked to find that what I thought was fizzy drinks at the front of the store was alcohol cans of drink. It looks very appealing and bright they look like fizzy energy drinks also. Very clearly aimed at teenagers to encourage them to take up drinking. The store manager was very good and agreed that the worst one is the yellow tiny beer […] he said he would be in touch after he has spoken to his head office as he himself was worried that this would lead to underage drinking of alcohol drinks. This type of promotion should not be allowed to be displayed on these cans. Thanks for taking the time to read this”.
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 expressed surprise that it had received a complaint about the canned version of Cwtch. The company explained that, following a previous complaint, it had fully rebranded the product and did so in consultation with the Portman Group’s Advisory Service. The company shared the advice provided by the Advisory Service with the Panel which read as:
‘’We think that the new packaging for Cwtch is likely to be fine under the Code. We think that the changes have made it clearer that the artwork is reminiscent of Austin Powers, as you mentioned during your defence of the product in 2017. The Panel did not address the name Cwtch in their decision of 2017 but as the product is sold more broadly than Wales we think it is fair to state that the majority of people may not know what the word means. You have now clarified this on the side of the can with the text ‘it simply means a hug full of love’. There is the risk that there is an insinuation that by consuming the beer the consumer will gain a ‘loving feeling’ (rule 3.2j therapeutic properties) and you may want to reconsider whether you want to clarify this meaning in text on the label.’’
The company stated that Cwtch, as one of the first three beers it ever brewed, was one of its core beers and its most well-known brand. The company explained that Cwtch had been available since mid-2012 in cask and keg, bottle from 2014 and cans from February 2017. The company highlighted the fact the beer was awarded Supreme Champion Beer of Britain in 2015, which led to national press coverage and widespread distribution. The company stated that the beer was sold nationally through Coors, Matthew Clarke and Waitrose, and also through large networks of on-trade wholesalers, as well as Welsh branches of the Co-op and Marks and Spencer. The company explained that Cwtch was its best-selling beer over the past two years, accounting for 30% of its total output. The company explained that, within the beer world, the brand Tiny Rebel was synonymous with its leading beer, Cwtch.
In relation to Code Rule 3.1, the company highlighted that ‘Welsh Red Ale 4.6% ABV’ was featured prominently on the can directly beneath the brand name and immediately next to the company logo. The company stated that the left-hand area of the artwork featured all the legally required information for an alcoholic beverage and included the text ‘Brewed…at Tiny Rebel Brewing Company’ which further indicated the alcoholic nature of its contents. The company also highlighted that the left-hand area of the can included the ABV, the number of units in the container, signposting to Drinkaware and the word ‘beer’ listed in 16 languages including English and Welsh. The company stated that all of the text on the product described its contents as alcoholic and that there was no marketing content designed to persuade anyone to purchase it.
The company explained that the content of the product would have been well communicated by the context of its sale and that it was only stocked in a dedicated and clearly marked alcohol aisle/section. The company stated that the recommended retail price of £2.00 differentiated it from a soft drink and that a cashier would have asked for age identification at the point of purchase, further removing any ambiguity that the product was alcoholic in nature.
Addressing the second part of the complaint, that the product had particular appeal to under-18s, the company stated that the text on the can only described its content and that any potential appeal would therefore be through the design of the packaging. The company explained that the design incorporated colourful swirly lines and that the only recognisable shape was a love heart; a reference to the beer’s name, which meant a hug full of love in Welsh. The company stated that the use of colour and a psychedelic pattern did not appeal to any particular group and was only designed to stand out amongst traditional designs.
The company then went on to address the specific points raised by the complainant. The company stated that a similarly-designed soft drink could be put forward in comparison to any alcoholic drink in a can with the only link being the use of vibrant colours. The company stated that the utilisation of colourful design could not be taken as evidence that a product was directly or indirectly marketed to any specific group.
The company stated that beer in 330ml cans was common throughout the UK and the rest of the world. The company explained that cans have a significant advantage over bottles as they afford better protection from sunlight and oxygen and are more economical for storing and shipping due to their shape. The company stated that the use of a 330ml can could not be said to market the product to any group in particular and was simply the best available form of packaging in an industry-standard size.
The company explained that canned beer takes up a large proportion of shelf space in any major supermarket, and so the complainant should not be surprised to find beer in this format featuring colourful illustration. The company stated that many supermarkets were stocked with 330ml cans of beer, many with colourful and energetic designs – but that none of these, including Cwtch, could be said to be particularly marketed at under-18s. The company stated that the use of the colour yellow could not be taken to be directly or indirectly marketed to any specific group, especially under-18s, and referenced another can on the market with a similar colour palette.
The company concluded by stating that Cwtch was clearly marked as an alcoholic product, was not alone in being packaged in a 330ml can and featured only descriptions of its contents on a block yellow background which could not be said to particularly appeal to under-18s. The company also stated that the can style and size of packaging was common to the industry and well understood, especially in the context of a dedicated beer/alcohol aisle at a retail venue where age verification would be required for purchase. Finally, the company stated that they did not consider the Cwtch brand to appeal to under-18s.
The company responded to the provisional decision. In this response, they stated that they were not provided with the photograph from the complaint. The company noted that the shop referred to was located near their main place of business in South Wales. They said they did not know the identity of the complainant and therefore they did not know whether this person had had previous dealings with them which may have motivated the complaint. The company noted that the complaint made reference to an alleged conversation with an unnamed store manager. The company stated that the context in which the drink was displayed would have had a bearing on the customer, and could have caused confusion, and believed that this influence on the complainant should be taken into account. The company explained that they appreciated the Panel would consider the provisions of the Code and the product itself and would not be otherwise influenced by the content of the complaint. They said if that was not the case, they would object to the fact that they had not been supplied with the photograph, the identity of the complainant, and that the complaint included reference to an alleged conversation.
In the company’s response to the provisional decision that the product breached Code rule 3.2 (h), they said it was clear that the primary concern of the Panel was the ‘teddy bear’ on the front of the can. They noted the references to the ‘teddy bear design’ and the statement that the design resembled a ‘soft toy’. They did not agree with this characterisation of the bear and other aspects of the design. The company stated that the bear was not a teddy bear and said the collinsdictionary.com definition of a teddy bear was ‘… a children’s toy, made from soft or furry material which looks like a friendly bear’. The company argued there was no indication the bear was soft or furry, or that it was friendly. They said it was the opposite: the image had no colour, was black and white and did not have a mouth. The Company stated that the image was in a graffiti art style which had become a reputable art form while at the same time portraying something of a rebellious outlook on life. The company stated that the bear was not an image of a children’s teddy bear, and that it was inaccurate to describe it as such. The company stated that it was not an image of a children’s teddy bear and that to describe it as so was inaccurate. The company said the image of the bear was also small; it was not prominent or the focal point of the design. They said it was attached to the label that clearly stated – ‘Welsh Red Ale 4.6% ABV’.
The company stated that the branding did not contain extensive cartoons that could be more likely to appeal to under 18s. The company noted that the Panel decision on Disco Forklift Truck Mango Pale Ale said the Panel considered the extensive use of cartoons on that product was ‘… More cartoon like in nature and depicted what might be considered to be juvenile behaviour’. The company argued that this was not the case here, that there was one drawing of the company’s logo and that image was not childlike nor would it hold appeal to under 18s.
The company took the Panel’s reference to ‘bubble font’ to mean that the font was wide, with a colour infill. They said it was not a childlike font and was instead consistent with the graffiti style. The company said the use of a wide font with a colour infill was common and had been used on other products considered by the Panel, including Neck Oil and Happydown, without specific reference being made to that aspect of the design.
The company said the use of primary colours was also consistent with the graffiti style and was intended to be reminiscent of Austin Powers 1960’s psychedelic retro pop art style, a mature theme. The company thought a parallel could be drawn with Happydown’s, which they said contained a more extensive cartoon design with the use of primary colours. The noted the Panel’s decision on Happydown concluded that ‘the product was a good example of how bright colours and an illustrative style [that] had been used in a way that maintained a mature theme and avoided particular appeal to under 18s’. The company contended that their design was equally capable of such a conclusion being reached.
The company said the packaging clearly showed that this was an alcoholic drink and they believed that was also an important part in showing that the product was not of particular appeal to under 18’s.
The company said that, as a consequence of the previous complaint in 2017, they had made alterations to the design of the product. They said they were of the opinion that those alterations dealt with the criticism that had been made. They said that they had not received any complaint directly and that the complaint fundamentally related to the retailer’s placing of alcoholic products in its store.
The company stated that the criticism of the bear was of particular concern to them and that the bear had been the trademarked logo of the brand since inception. They said they had been trading for seven years and the bear logo was synonymous with their brand. The company said an adverse decision would have a serious and damaging impact on their company. The company stated that they had not received any complaint about the product or brand, from the public or retailers.
The Company requested that, if the Panel remained of the view that there was a risk that the product infringed paragraph 3.2 (h), final decision be postponed for three months to enable the company to undertake market research as to whether or not the packaging had an appeal to under 18s. They said they would propose to make further representations to the Panel before it reached its final decision based on that market research, or if the research analysis concluded that there was such appeal they would recognise the point and take steps to re-brand their product.
The company noted the provisional decision referred to the fact that the combination of factors ‘…could be problematic when considered together’; they said there appeared to be a lack of certainty and argued the Panel might be assisted by research being available to it. The company stated that their primary representation was that the packaging did not infringe rule 3.2(h) and requested the Panel reconsider its provisional decision.
The Panel’s assessment
The Panel began by discussing the product design and considering how clearly it conveyed the alcoholic nature of the drink. The Panel noted that the ABV was displayed on the front of the can and that the use of white text on a black background made it easily identifiable to consumers. It noted that similar font and colours had been used for the product descriptor ‘Welsh Red Ale’ which further reinforced the alcoholic nature of the contents and meant that the product was unlikely to be confused with a soft drink.
The Panel noted by contrast that the back label was quite congested which might make it difficult to read. It also highlighted the use of words such as ‘toffee’, ‘citrus’ and ‘ice cream’ as potentially confusing when used alongside colourful artwork and a teddy bear logo. Nevertheless, the Panel felt that overall, the front of the can sufficiently conveyed the alcoholic nature of the product and therefore did not uphold the complaint under code rule 3.1.
The Panel then considered whether the product had a particular appeal to under 18s. The Panel did not consider the use of a yellow can alone to be problematic. However, they expressed concern that the combination of a cartoon teddy bear on the front of the can, the use of a bubble font for the product name and the use of bright primary colours on the packaging could be problematic when considered together. The Panel reiterated their view that the use of a teddy bear would appeal to young children, even if this was not the intention of the producer. They noted that the prominence of the teddy bear on the front of can was a particular concern which could have been alleviated had it been moved to the side or back during the product redesign. The company had referenced the advice given by the Portman Group advisory service and the Panel were therefore able to see this advice.
They noted that the Advisory Service in its advice on a previously upheld decision against Cwtch recommended:
“…decreasing the size of the bear on the front of the can and moving the logo to the side so that it was no longer part of the brand narrative.”
The Advisory Service had subsequently given advice in January 2018 during the rebranding of a range of products. This advice contained some general comments on the positioning of the corporate logo and said:
“…it is the opinion of the Advisory Service that the bear itself could still have a particular appeal to very young children and we would still recommend that it is only positioned proportionately on the side of the can… instead of featuring on the front of the can…”
The Panel recognised that the producers had sought to follow most of the advice given in relation to Cwtch but expressed regret that it had not chosen to remove the bear from the front of the can. The Panel recognised that in this case the teddy bear design was part of the Tiny Rebel corporate logo and therefore had particular significance to the producer. However, they felt that the decision to place a corporate logo which resembled a soft toy so prominently on the front of the product meant that it had become part of the product brand narrative and therefore contributed to its overall impression. Given the nature of the corporate logo in this case was considered by the Panel as likely to have particular appeal to under 18s, and that the product was packaged in bright primary colours, using child-like bubble writing for the product name, the Panel considered that the company should not have placed the logo so prominently on the front of the can. The Panel understood that the producer would want their name and logo to be part of the design, and noted that the company’s name was already prominently displayed on the front of the can, and the name and corporate logo were also displayed clearly on the side of can in a position that did not give undue prominence.
They acknowledged that it was unusual to receive two separate complaints about one product in such a short space of time and acknowledged and were glad to see that the producer had made changes – such as removing the spray cans and graffiti and enhancing the visibility of the ABV – to improve the design.
The Panel also acknowledged the company’s lengthy response to the provisional decision. The Panel considered that it had the information it needed to reach a final decision without waiting at this late stage in the process for market research. The Panel considered that the company could, in principle, use the bear as part of their corporate logo and include it on product packaging without breaching the Code, and noted that the Advisory Service had given previous advice which would have made this possible, which the company had chosen not to follow.
In the Panel’s view, the presence of the teddy bear on the front of the can, coupled with the use in the design of a bubble font and bright primary colours, meant that the product had particular appeal to under 18s and they therefore upheld the complaint under code rule 3.2(h).
Action by Company
The company decided not to work with the Portman Group advisory service to amend their product in line with the Panel’s ruling. Therefore, the Retailer Alert Bulletin below was issued.