Company: Tiny Rebel Brewing Company
Final Decision: 11 December 2017
Considered under 5th Edition of the Code.
“I came across this product in Budgens in Kimbolton on 25th June 2017. At first I thought it to be a can of fizzy pop. It looks VERY similar to Sunkist?! I then looked closer and saw it to be Welsh Red Ale. This is actually alcohol? In a 330ml can? Surely this packaging is targeting the wrong age group? Concerning that young children would give this to their parents to buy who wouldn’t necessarily take a second look? The can size and packaging is too close to the line for my liking. Appears to be aimed at kids?!”
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(b)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous or anti-social behaviour
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
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 stated that Cwtch had been available in various forms since 2012, with the 330ml can version available since February 2017. The company stated that their marketing was aimed at no one group in particular and that they had never received a complaint about the branding of Cwtch up until this point.
In response to the complainant’s claim that the product did not clearly communicate the alcoholic nature of the drink with absolute clarity the company asserted that there were several cues on the packaging that clearly indicated the product was alcohol:
- “Welsh Red Ale” featured prominently on the can;
- the left-hand side of the can featured all the information legally required on an alcoholic beverage; including “Brewed…at Tiny Rebel Brewing Company”;
- the left-hand side also included the alcohol strength statement “Alc 4.6% vol”, the number of units of alcohol in the can and a reference to “drinkaware.co.uk”;
- the word “Beer” was conveyed in 16 languages, including English and Welsh.
The company then addressed the complainant’s claim that the 330ml can size was akin to a can of fizzy pop. The company highlighted that the use of a 330ml can by the alcohol industry was not a recent innovation and was now so popular for alcohol that it was rather a utilisation of the best form of packaging in the industry for craft beer; however, it was not aimed at any group in particular. In addition to this, the product would be stocked in an alcohol aisle with the retail price set far higher than that of a soft drink (RRP £2.30). Finally, the company also noted that the complainant had immediately recognised that Cwtch was an alcoholic beverage; thereby confirming that the alcohol content on the packaging had been communicated with absolute clarity.
Turning to the second point of the complaint, that the product had a particular appeal to under-18s, the company stated that the use of colours and the psychedelic pattern were inspired by 1960s cliché and the Austin Powers film franchise, although there were no direct references on the packaging.
The company asserted that the colourful, swirling pattern did not have a particular appeal to under-18s; the colours used were a square colour harmony rather than a set of contrasting colours, which further removed any particular appeal to under-18s. The company went on to say the use of colours in packaging could not be avoided.
The company explained that the Tiny Rebel bear logo was partly a manifestation of the two co-founders’ personalities and a broader reflection of the industrial, urban city of Newport where the beer hailed from. The bear image could not be mistaken for a ‘teddy bear’ as the bear was deliberately designed to be scruffy and a dark, abstract representation of the feel of the city rather than something which was cuddly or fluffy. This was achieved by removing any anthropomorphic features, such as the bear’s eyes, a mouth and open, welcoming arms. The inclusion of the hoodie on the bear was also part of the urban look and feel of Cwtch and, as a clothing item, had no particular appeal to any one group of individuals.
Finally, when considering whether the product had a particular appeal to under-18s, the company emphasised that, on the contrary, it was designed to specifically appeal to over-18s by utilising 20th century urban themes.
The company asserted that graffiti culture was a relic of the past and its reference on the front of the product packaging was designed to create a nostalgic-feel to appeal to adults, who recognised it from their teenage years.
The company concluded that as no single element held a particular appeal to under-18s, there were no elements which could combine with the position of the wording, Tiny Rebel, to reinforce a particular appeal to under-18s.
As part of the company’s response to the provisional decision, they addressed the Panel’s finding that the product indirectly encouraged immoderate consumption.
The company asserted that the Tiny Rebel bear logo did not display any characteristics which would suggest that it was inebriated; the bear on the front of the can was presented in an upright position rather than being ‘slumped’ and the ‘missing eye’ which the Panel had highlighted, was a sad face which had been designed to reflect an urban, post-industrial image based on the city of Newport. Further to this, the company stated that it was physically impossible for the bear to be intoxicated as it had no anthropomorphic features, i.e., it had no mouth. Therefore, as no individual element depicted drunkenness, there could be no suggestion that the overall impression of the product encouraged immoderate consumption.
The Panel’s assessment
The Panel began by recognising that the company was trying to be innovative with regard to packaging size and design and noted that the business had grown rapidly over a short space of time.
The Panel did not want to stifle creativity in this area. The Panel also praised the company for their social responsibility efforts in their local community and noted that the company had not intentionally sought to create product packaging that had a particular appeal to under-18s.
The Panel was keen to urge producers to be aware that the alcoholic nature of 330ml cans, because they had been long established in the soft drinks market, could be ambiguous, particularly if there was a risk that the product could appeal to children and such products needed to work harder to ensure a distinction with soft drinks.
The Panel noted that the word “ale” featured on the front of the packaging, and that there was a section on the side of the can which contained the word ‘beer’ in several languages, the unit content of the can and the alcoholic strength. The Panel also acknowledged that the complainant had realised the product was alcohol on closer inspection. In light of this, the Panel concluded that the alcoholic nature of the product was communicated with absolute clarity, and accordingly did not uphold the complaint under Code rule 3.1.
The Panel went on to consider the packaging more broadly and discussed the literal interpretation of the design, which appeared to depict a drunken bear, that had graffitied and then collapsed on the floor looking dishevelled. The Panel acknowledged that graffiti was increasingly seen as an art form and was not necessarily indicative of anti-social behaviour. Therefore, the Panel did not uphold the product under Code rule 3.2(b).
The Panel then focused on the appearance of the bear and its prominence above the company name “Tiny Rebel”. The Panel acknowledged that the company had intended for the bear to be an abstract reflection of Newport’s urban environment but also noted that the bear appeared prominently on the front of the packaging and alongside the word ‘ale’. The Panel considered that the bear, who had a cross-stitch to represent a missing eye, and a slumped posture, appeared intoxicated; and, that this was reinforced by the positioning of “Tiny Rebel” directly below the character. When considered in the context of an alcohol product, the Panel concluded that the combination of the “Tiny Rebel” logo and the dishevelled bear placed so prominently on the packaging indirectly encouraged immoderate consumption and therefore upheld the product under Code rule 3.2(f).
The Panel noted the company’s argument that no individual element on the product packaging encouraged immoderate consumption, or had a particular appeal to under-18s, which meant that, when taken in combination, these elements could not contribute to either Code rule overall. However, the Panel fundamentally disagreed with this point, and sought to remind companies that they will always consider the overall impression conveyed by a product, even if this is unintentional.
As part of the company’s response to the provisional decision, the Panel were presented with alternative images which depicted ‘teddy bears’. The Panel disagreed with the company’s assertion that the bear had no anthropomorphic features as the bear was dressed in a hoodie and had undertaken human actions, such as using spray cans. Furthermore, the black line drawing presentation of the character made the character take on the resemblance of a toy bear. The Panel noted that the co-founders of the company had created a character which reflected their personalities but concluded that due to the size and prominence of the bear on the packaging this had now inadvertently become part of the product narrative rather than simply a corporate logo.
The Panel then discussed whether toy bears had a particular appeal to very young children. The Panel concluded that this point could not be ignored regardless of whether the product was deliberately aimed at children or not.
The Panel agreed that, when used in combination, the prominence of the hoodie-wearing bear above the wording “Tiny Rebel”, graffiti activity in the background and swirling primary colours were likely to have a particular appeal to both younger children and early teenage audiences.
The Panel also considered the overall impression conveyed by the front label, in particular noting the apparent drunken demeanour of the bear wearing a hoodie, slumped on the ground, surrounded by graffiti cans and swirling primary colours in the background. These elements were then discussed in conjunction with the prominence of the bear and “Tiny Rebel” wording on the front label. The Panel reflected that all these elements, in combination, created the impression of a child’s bear morphed into something more rebellious and could create an appeal to an older child who was leaving childhood behind. The Panel acknowledged that while they were not upholding the product under Code rule 3.2(b) both the presence of graffiti and the fact that the bear was wearing a hoodie were cues which were strongly associated with a wide range of products currently marketed to teenagers. The Panel considered this point in the context of the company’s assertion that the design of the can was aimed at adults on a nostalgia-based level but concluded that certain elements, such as the bear wearing a hoodie and graffiti in bright swirling colours, were features that would still be used to market to teenagers today. Reinforcing this point, the Panel said that the fact that these elements appealed to adults when they themselves were teenagers, meant that they could still appeal to teenagers today.
The Panel therefore concluded that the prominence, in size and positioning of the bear and “Tiny Rebel”, in combination with the other elements on the front label, caused the product to have a particular appeal to under-18s and accordingly upheld the product under Code rule 3.2(h).
Action by the Company
The company has contacted the Portman Group’s Advisory Service for guidance on appropriate changes to the product packaging.