“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.
Member of the public
Under Code paragraph 3.2(h)
A drink, its packaging or promotion should not have a particular appeal to under-18s (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators)
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 company explained that it took all consumer complaints very seriously and after carrying out its own due diligence on the product, did not agree that the product was in breach of Code rule 3.2(h). The company stated that ice cream had mass appeal, whether it was in a bar, cone, on a stick or in a tub. The company enclosed a link to a marketing magazine article on the ice cream sector to support this statement.
The Panel’s assessment:
Code Rule 3.2(h)
The Panel first considered whether the product had a particular appeal to under-18s. The Panel noted that the product name, Double 99, referred to a well-known ice cream and that the front of the can also included the description ‘CHOCOLATE FLAKE SOFT SERVE IMPERIAL STOUT 9.9% ABV’. The Panel noted that the product imagery built on the ice cream theme, with a stylised illustration of a soft serve ice cream with two chocolate flakes wrapped round the can and wafer-effect cross hatching around the bottom.
Some Panel members considered that the ice cream illustration was very large and stylised, so that it was not immediately obvious that it depicted ice cream. The Panel also noted that the chocolate flakes were at the side of the can and not immediately identifiable when the front of the can was facing forward. The Panel acknowledged that ice cream in general, and a ‘99’ ice cream in particular, appealed to all age groups. The Panel reiterated its view, however, that alcohol products featuring confectionary flavours, names or imagery needed to work harder to avoid having a particular appeal to under-18s. The Panel considered that, even though the imagery was highly stylised and did not create a strong visual ‘ice cream’ cue in itself, the product name made a very overt link with ice cream, particularly when taken in combination with the imagery.
The Panel noted that the can featured the company’s corporate logo, a drawing of a stuffed bear, next to the product description on the front of the can. The Panel discussed the two previous precedents where it had had discussed the bear logo as part of a complaint consideration: namely the Cwtch (2017) and Cwtch (2019) decisions. The Panel noted that on both occasions Cwtch was found to be in breach of the Code and that the bear logo had been a contributary factor in creating a particular appeal to under-18s when considered alongside the design of a bubble font and bright primary colours.
The Panel acknowledged that the bear was the producer’s corporate logo and considered that it did not necessarily breach the Code, in itself, but that it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance.
The Panel stated that, as always, it was imperative to consider the overall impression of the product and that the impact of the bear logo depended on its size and context, including the presence of other design elements that may have a particular appeal to under-18s and/or a design that focused attention on the bear.
The Panel carefully considered whether the bear logo was an element creating particular appeal to under-18s in the context of the Double 99 can. The Panel considered the overall impression created by the Double 99 can and noted that the colour scheme was muted and the design did not include child-like elements such as bright colours or typefaces that may particularly resonate with children. The Panel considered, however, that the dominant theme of ice cream, combined with the bear logo on the front of the can, meant that the overall impression conveyed by the product packaging did create a particular appeal to under-18s. Accordingly, the Panel upheld the complaint under Code Rule 3.2(h).
Code Rule 3.2(f)
The Panel noted that the product was a 440ml size can with an ABV of 9.9% which equated to 4.4 units in a container. The Panel noted that the Portman Group’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks did not define ‘immoderate consumption’ as part of Code rule 3.2(f).
The Panel considered non-binding guidance to the rule issued by the Portman Group’s Advisory Service which stated that:
The Advisory Service recommends that containers which are typically single-serve, and whose contents are typically consumed by one person in one sitting, should not contain more than four units. This position has received support from the CMO’s and the Department of Health and Social Care (DHSC) as an appropriate threshold to help reduce alcohol related harms, and as a pragmatic and responsible industry approach in the absence of national daily guidelines.
The Panel noted that it had decided in 2020 that the packaging of Oranjeboom 8.5% (4.25 units) and Karpackie 9% (4.5 units) encouraged irresponsible consumption contrary to rule 3.2(f). It noted that the guidance continued:
Having more than four-units in a single-serve container will not automatically result in a product being found in breach of the Code; it is the view of the Advisory Service that the Panel is likely to take other factors into account when determining whether a product encourages immoderate consumption. It is not possible to produce an exhaustive list of mitigating factors but the Panel may consider: whether the container contained a ‘share’ message or a ‘per serve’ recommendation, how easily the container could be resealed, whether the producer was able to demonstrate that the contents were shared (by decanting) or typically consumed over more than one sitting, the premium status/quality of the product and its positioning in the market including the price at which it is generally sold, alcohol type (does the product degrade quickly once opened) and the overall impression conveyed by the product packaging (such as terminology used in the name and product description). The mitigating factors should be commensurate with the number of units (above 4 units) in the single-serve container. The Panel is also likely to take into consideration whether the packaging contains responsibility messaging, for example, the number of units in the container and a reference to the Drinkaware website.
The Panel considered whether consumers were likely to regard it as a single-serve container to be consumed by one person in one sitting. The Panel considered that, because the can was not easily resealable and research showed consumers typically regarded cans as intended for consumption by one person in one sitting, it was likely to be seen as a single-serve container. The Panel acknowledged that a single-serve non-resealable container which contained more than 4 units of alcohol was not the only factor to be assessed when determining whether a product encouraged immoderate consumption and therefore analysed the product for mitigating factors that could reduce the risk of encouraging immoderate consumption, such as a recommendation to share the contents, per-serve messaging or information about responsible drinking. The Panel noted that the ABV was clearly displayed on the front of the can and that the back of the can stated that the product contained 4.4 units. However, the Panel also noted that the can did not include responsible drinking messaging such as the UK Chief Medical Officers’ Low Risk Drinking Guidelines, sharing message or a suggestion that the can should be consumed as two servings. The Panel noted that the product was a relatively strong beer that had been used in combination with a Double 99 ice cream theme found to have a particular appeal to under-18s, which itself raised issues under Code clause 1.1 (social responsibility). After considering all the features of the packaging, the Panel concluded that the product encouraged immoderate consumption. Accordingly, the Panel upheld the complaint under Code Rule 3.2(f).
Action by Company:
Working with the Portman Group’s Advisory Service.