Company: Drygate Brewing Company Ltd
Final Decision: 13 September 2018
- The labelling doesn’t make it clear that this is an alcoholic beverage. It looks more like a soft drink can.
- The brightly coloured cartoonish labelling is likely to resonate with and have particular appeal to under-18s.
- The characters on the label depict young people (who look as though they may be under 25 years old) having great fun. The implication is that they are having fun because of consuming the product they are featured on.
- The imagery used shows a character balancing on an extended forklift truck arm. This suggests an association with bravado and dangerous behaviour.
- The garish colours and bizarre scenes of people flying, coloured flying whales, severed legs and the like suggest an allusion to an LSD trip or some other kind of psychedelic experience.
- All of the characters depicted are doing amazing things. This suggests the product has qualities that can enhance your capabilities.
Aberdeenshire Alcohol and Drug Partnership
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(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(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
Under Code paragraph 3.2(i)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way incorporate images of people who are, or look as if they are, under 25 years of age, where there is any suggestion that they are drinking alcohol or they are featured in a significant role. Images may be shown where people appear only in an incidental context
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, or can enhance mental or physical capabilities
The company’s submission:
The company began by stating that it takes its responsibility as a brewer very seriously. The company, which is based in Glasgow, had not been affected by minimum unit pricing in Scotland and believed that this demonstrated that the Scottish Government did not believe its products were a cause for concern regarding alcohol abuse.
The company commended the work that the complainant, Aberdeenshire Alcohol and Drug Partnership, does to spread awareness of the dangers of alcohol abuse by under-18s but stated that there was no correlation between causes of actual harm to underage drinkers and Disco Forklift Truck as a product.
The company stated that this was the first complaint it had received despite distributing hundreds of thousands of cans since its product launch. It noted that the complaint had been raised by an employee of a government funded body who had openly admitted to an agenda against the Portman Group.
The company explained that, similarly to Gamma Ray in 2015 and Cwtch in 2017, the packaging format of a 330ml can had been chosen as it maintained beer quality better than glass bottles. The company stated that 330ml cans had become a widely utilised packaging format in the beer industry and intricate can designs were a common feature of this innovative category. The company contended that their prevalence in the market was so commonplace that consumers would immediately recognise such 330ml cans as craft beer as opposed to plainer soft drinks packaging in a similar format. The company stated that producers utilising smaller packaging formats for alcohol should be applauded rather than discouraged.
The company explained that it had consulted with the Portman Group’s Advisory Service and had made every effort to communicate the alcoholic nature of the product with absolute clarity. The company highlighted that the word ‘ale’ featured prominently on the front of the can directly underneath the brand name and was present on the side of the can, which also included the alcoholic strength by volume, units per container, the word ‘beer’ in six different languages and the UK pregnancy warning.
The company referenced recent polling which had been conducted on Facebook by Durham Constabulary Harm Reduction Unit which asked users whether they thought Disco Forklift Truck was a ‘soft drink’, ‘alcopop’ or ‘beer’. The majority of users commented that the product was clearly an alcoholic beverage with 94% of respondents stating that it was immediately obvious that the product was beer.
The company then addressed the complainant’s assertion that the brightly coloured, cartoon depictions caused the product to have a particular appeal to under-18s. The company stated that the beer it produces is high quality and is priced at a point which specifically discourages alcohol abuse. The company explained that its product range had an assertive bitterness from significant hop additions and was not designed to appeal to an inexperienced palate. Therefore, even if the product was found to be in breach of rule 3.2(h), which it contested, an under-18 would not appreciate the flavour of the product which would minimise the danger of alcohol abuse.
The company stated that the Portman Group’s Code Guidance stressed that branding should not have a ‘particular’ appeal to under-18s and that the mere presence of colourful, cartoonish characters did not necessarily mean that the product would ‘particularly’ resonate with under-18s. The product packaging was designed to play on nostalgic cues from its target demographic’s childhoods; such as disco music and science fiction. The imagery featured on the can was therefore a direct reference to the name of the product, in that it featured playful characterisations of many common Disco tropes, such as Afro haircuts, dancing, platform shoes, disco balls and bright colours. The company explained that the chosen colour palette created an association with the natural ingredients featured in the product (orange, yellow and green for the mango flavour) and that no colour scheme was the sole preserve of a specific age bracket.
The company acknowledged that it had received advice from the Portman Group’s Advisory Service which had advised that the design may be problematic under rule 3.2(h) but that it respectfully disagreed. The company explained that the design of the can featured sophisticated illustrations that were intended to be bright and whimsical to reflect the sci-fi interests of their target market. The company argued that none of these elements would have a particular appeal to under-18s when considered alongside the appeal the product would hold for its 25+ year old target market.
The company then addressed the complainant’s point that the characters on the product appeared to be under 25 years old and having fun due to consumption of the product. The company stated that there were no suggestions, implied or otherwise, that any of the characters were inebriated or that they had even consumed the product. The characters depicted were not intended to be gender, age or even species specific but were designed to evoke the age of disco and space explorations of the 1970s. The retro concept was therefore intended to resonate with a sophisticated audience who would appreciate the surrealist and kitsch nature of the illustrations rather than an innuendo of enhanced ability on the part of the consumer.
The company then considered the complainant’s assertion that the product created an association with bravado and dangerous behaviour by depicting a character balancing on an extended forklift truck arm. The company stated that the character was designed to evoke the podium dancers of the disco age. As the beer name, and illustrations were fantastical in nature (i.e. flying with jet packs) there was no possibility of danger or association with bravado. The company explained that this element of the design brought together the concept of disco and the presence of the forklift truck was integral to the illustrative logic rather than an encouragement of dangerous or reckless behaviour.
Finally, in response to the complainant’s point that the colours and scenes of people flying created an association with an LSD trip/psychedelic experience the company quoted the artist behind the illustrations who stated that “this imagery is not intended to convey any sort of drug like state, not remotely”. The company reiterated that the entire artistic piece reflected a world where the normal rules of physics and fashion did not apply.
As part of the company’s response to the provisional decision, they addressed the Panel’s finding that the cartoon depiction of a character dancing on a forklift was in breach of Code rule 3.2(b). The company accepted the Panel’s finding on this point, and advised they were in the process of reviewing the artwork and would work with the Portman Groups advisory service. The company included a draft revision for information.
The company then went on address the Panel’s finding under Code rule 3.2(h) and confirmed they refuted the findings of the provisional decision. The company noted the Panel’s conclusion that several elements of the can, when taken together, appealed to under 18s and advised they would address each point in turn.
The company began by considering the use of bright colours on the packaging and cited that they would refer to the study ‘Youth Engagement with Alcohol Brands in the UK’.1 The company referenced the finding in the report that 13-18-year olds claimed that price-point and strength were the main factors when considering the appeal of a drink. The producer assumed from the report’s2 findings that bright colours appealed mainly to younger females who are simultaneously the least likely to chose beer as a product to consume. The company stated that, when considering the appeal to under 18s in this context, Disco Forklift Truck IPA did not appeal to those who would consider bright colours a factor when choosing a product, because of the type of drink it was, i.e.an IPA, nor did it appeal to them because of the price point.
The company next addressed the text, ‘Mango Fandango’ and refuted the claim that the flavour descriptors did not align with language used across all sectors of the alcohol industry. The company stated that the use of the flavour descriptors all appeared next to language that informed the consumer the drink contained alcohol. The company concluded that the language used would not appeal to an under 18 audience as it could not be confused with a soft drink.
The company addressed the cartoon characters engaging in ‘juvenile behaviour’ by stating that most of the depictions showed the characters engaging in hyper-realistic situations, such as flying or using jet packs. The company concluded that as these depictions did not have a base in reality so they could not be described as juvenile, and therefore would not particularly appeal to under 18s.
The company refuted the Panel’s view that the can size was a contributing factor that would appeal to an underage audience and stated that, in store, the can would be found in the BWS aisle as a clear indicator that it contained alcohol. Furthermore, in a home environment if either intentionally, or unintentionally, consumed by a child the mature flavour profile would prevent a child consuming the rest of the beverage. The company added they did not believe that the colouring of the packaging alone, or the flavour descriptors or cartoon characters could lead to the product to over index with an underage audience and concluded that in a home environment it is not the responsibility of the producer to ensure their product is not consumed by an underage consumer.
The Panel’s assessment:
The Panel considered the overall impression conveyed by the product and noted that the design featured bright colours in combination with an eventful illustrative landscape.
The Panel discussed the company’s initial response and noted that the word ‘ale’ appeared on the front of the can and on the side of the can. The Panel were concerned that the company had chosen to prioritise the brand name Disco Forklift Truck in bold on the front of the can while minimising the size of ‘mango pale ale’, particularly when overlaid on a busy illustrative design. The Panel then considered the alcoholic signifiers visible in the same field of vision on the side of the can, which included the word ‘beer’ in multiple languages, the unit content of the container, the alcoholic strength by volume and the pregnancy warning. The Panel discussed the company’s point that 330ml cans, with bright illustrative designs, were now recognisable as craft beer and acknowledged that some consumers would be more familiar with this style of packaging. However, the Panel sought to remind producers that any alcohol packaging which contained negative cues that may detract from the alcoholic nature of a product (bright colours and busy illustrations), needed to work harder to ensure that the alcoholic nature was communicated with absolute clarity. In this instance, the Panel noted that the product complied with EU Regulation 1169/2011 on the provision of Food Information to Consumers and accordingly did not uphold the product under Code rule 3.1. Despite this, the Panel encouraged the producer to consider best practice standards when communicating the alcoholic nature of the product in the future.
The Panel went on to consider the complainant’s points in turn and discussed whether the bright colours and illustrations had a particular appeal to under18s. The Panel carefully considered the company’s response and noted that the company drew several broad comparisons to the 2015 Gamma Ray case while highlighting that their artwork was distinctively different to Gamma Ray’s. The Panel discussed some of the similarities between the products and noted that the artwork on Disco Forklift Truck was more cartoon-like in nature and depicted what might be considered to be juvenile behaviour.
The Panel had acknowledged the company’s point that the flavour ‘mango pale ale’ and the accompanying artwork were reflective of pushing the boundaries for both brewing and artistic design. The Panel noted the innovative elements of the product and the accompanying language on the side of the can which included the words ‘mango’, ‘fandango’, ‘tropical’, ‘juicy’, ‘fruits’ and ‘sweet’. The Panel concluded that these words were not typically associated with alcohol and were concerned that when they were used in combination with bright colours and cartoon illustrations, they might particularly appeal to children. This was of concern to the Panel when they considered the overall impression created by the product, particularly when placed in a home environment rather than in BWS aisles in the off-trade, and in conjunction with a can size which, whilst increasingly recognised as containing alcohol, is associated by children with soft drinks. The Panel concluded that the combination of colours, the language used, and the nature and behaviour of the cartoon illustrations, on a 330ml can, meant that the product did have, however unintentionally, a particular appeal to under-18s.
As part of the company’s original response to the complaint they referenced advice sought from the Portman Group’s Advisory Service and noted that they respectfully disagreed with it. The Panel therefore was provided with the advice for information.
The Panel acknowledged the company’s response to the provisional decision under rule 3.2(h), and noted that the they did not feel the company had intentionally set out for its product to have a particular appeal to an under-18s The Panel, while noting the company’s statement about the price-point of the product, reminded the company of the Code’s remit which did not extend to price considerations.
The Panel went on to consider the findings of the report3. It noted that the report focused on 13-18-year olds only but did not include findings on how a younger audience interacted with alcohol. The Panel also noted that the findings of the report did claim, and the company had accepted, that bright colours did appeal to younger females. In this context, the Panel considered that the company had accepted that bright colours did have a particular appeal to under-18s, albeit a segment of them. The Panel accepted the company’s statement that the producer could not control the home environment. However, the Panel felt a producer must consider its products in the wider context of the Code, and its desire to raise standards across the market, and the test to apply was not whether under-18s actually consumed the product, whether at home or elsewhere, but whether, in the first instance, the packaging and marketing of a product appealed to them.
The Panel clarified that, the language ‘Mango Fandango’ was not problematic taken alone, but in the context of the colour pallette used could appear as a soft drink and appeal to under 18s. This was compounded by the use of comic book style characters. The Panel accepted 330ml cans were increasingly recognised by adults as alcoholic by adults but noted that to a child a 330ml can was still synonymous with a soft drink. The Panel emphasised that the cues on 330 ml cans need to be clear in communicating that a product is alcoholic; with further consideration given to elements such as colour, language and illustration, that in combination may appeal to under 18s.
The Panel explained that the overall impression conveyed by the entirety of the can – the bright contrasting colours, the cartoon characters and the language used, in conjunction with the can size – created a cumulative impact of negative cues which were a distraction from the message that the product was alcoholic and therefore led the product to have a particular appeal to under 18’s. Accordingly the Panel upheld the product under Code rule 3.2(h).
The Panel went on to consider the company’s acceptance of their findings under rule 3.2(b) and acknowledged that the company was willing to work with the Portman Groups advisory service to amend the design.
The Panel also considered whether the figures depicted in the artwork were under-25 and concluded that they were not. Accordingly, the Panel did not uphold the product under Code rule 3.2(i).
The Panel discussed the brand name Disco Forklift Truck in the context of an alcohol product and agreed that at a fundamental level, it was concerned to see an alcohol product named after dangerous every day building-site machinery. The Panel considered the link to a forklift truck in combination with the character dancing on a raised forklift arm and concluded that the act too closely mirrored a potential real-life scenario, which would be wholly undesirable after the consumption of alcohol, to be considered fantastical and accordingly upheld the product under Code rule 3.2(b).
The Panel considered the overall impression conveyed by the artwork and did not find any link, direct or indirect, with illicit drugs and accordingly did not uphold the product under Code rule 3.2(c).
Finally, the Panel considered the complainant’s assertion that the product suggested that it could enhance a consumer’s capabilities and concluded that there was no suggestion on the packaging that a consumer would gain any physical or mental benefit from consumption of the product. Accordingly, the Panel did not uphold the complaint under Code rule 3.2(j).
Action by the Company: