Flying Dog Brewery (distributed in the UK by James Clay)
13 September 2018
Considered under the 5th edition of the Code.
“I feel that the packaging of this beer, appeals to persons under the age of 18. When offered a drink from a friends [sic] fridge I immediately presumed that this was a soft drink.”
The Portman Group (acting in lieu of a 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
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 binge drinking, drunkenness or drink-driving
The company’s submission
The company clarified that it was also responding on behalf of James Clay, its UK distributor. The company stated that it takes its responsibility as a brewer very seriously and did not promote its products to underage drinkers. The company said it was not aware that it had ever received a similar complaint despite distributing hundreds of thousands of cans of Easy IPA in the UK, United States and 12 other countries.
The company explained that Easy IPA was packaged in a 355ml can because it maintained the quality of beer better than crown-cap bottles and was easier to ship, particularly for export. The company asserted that 355ml cans were commonplace in the USA. The company also highlighted that the smaller can encouraged appreciation of the product, rather than mass consumption of it.
The company then addressed the complainant’s assertion that the product was not clearly alcoholic and looked like a soft drink. The company stated that the design could not reasonably be mistaken for anything other than an alcoholic drink – the term IPA was prominently displayed on the front and side of the can and was widely recognised as a moniker for ‘Indian Pale Ale’. In addition to this, the side of the can specified that the product was produced by a brewery and contained references to the alcoholic strength by volume and conformed to all legal labelling requirements. Furthermore, the unique image was not used to market non-alcoholic products and was used exclusively to market Easy IPA as an alcoholic drink.
The company then elaborated on the brand’s background and its target demographic. The company stated that all its products were recognisable for having unique and edgy labels, many of which had been designed by Ralph Steadman, an eminent artist in the UK, and particularly in the US, for his illustrations of the works of journalist and author Hunter S. Thompson. The company stated that its label artwork was a fundamental part of its business and its branding and artwork were intended to reflect the unique quality of its craft beer pedigree. The company explained that its products were priced at relatively high price points and its market demographic was 25–50 year olds who were mostly employed in white-collar managerial occupations with above average household incomes. In the company’s opinion, this significantly limited the products exposure to children in a retail setting and made under-age possession highly unlikely.
The company then addressed the complainant’s assertion that the product appealed to under-18s. The company stated that there was nothing inherent in the can’s colour, size or content that suggested the product was particularly attractive to younger people. The company highlighted that there was no evidence that the label was misleadingly similar to other products, like soft drinks, marketed to under-18s. Considering the lack of any evidence of complementary marketing materials and its high price point, the company stated that there was no evidence that the product was even marketed to those under the age of 25.
As part of the company’s response to the provisional decision, they refuted the Panel’s finding that the product indirectly encouraged immoderate consumption. The company disagreed that the character visible on the front of Easy IPA had ‘red droopy eyes’ asserting that they were in fact the character’s eyelids which were red and concluded its characteristics were whimsical and carefree rather than inebriated. Furthermore, the company challenged the Panel’s finding that the subject image appeared to be balancing on one leg while walking a line and noted that the ‘line’ used was an element of artistic perspective and not indicative of a sobriety test. The company concluded that taking these elements into account they did not believe that overall the product encouraged immoderate consumption.
The Panel’s assessment
The Panel noted that the front of the can contained the phrases ‘Easy IPA’, ‘Session IPA’ and ‘India Pale Ale’ in large letters. The Panel also noted that the sides of the can included the alcoholic strength by volume in bold numbers, the word ‘beer’ in multiple languages, the UK pregnancy warning and the sentence ‘brewed and canned by Flying Dog Brewery’. Whilst the Panel acknowledged that some consumers might be unfamiliar with the term ‘Session IPA’ it considered that the product complied with relevant labelling regulations and therefore communicated its alcoholic nature with absolute clarity. Accordingly, the Panel did not uphold the product under Code rule 3.1.
The Panel then discussed the term ‘Session IPA’ in more detail. The Panel noted that ‘Session IPA’ was a commonly used descriptor in the craft beer category that was used to denote a product of lower than average strength of ‘IPA’ but understood that this was not a legal definition of strength laid down in UK regulations. The Panel discussed the term’s heritage and noted that the name derived from the suggestion that a consumer could have a drinking ‘session’ because of the product’s assumed lower alcoholic strength. Whilst the Panel acknowledged that the original meaning of the term suggested a prolonged drinking session it concluded that the term was used in common parlance in the craft beer industry to convey a comparatively lower strength IPA, without necessarily encouraging a consumer to have a drinking session. The Panel concluded that it would consider the use of the term on a case by case basis and that the term’s acceptability would depend on the overall impression conveyed by a product.
The Panel then considered the overall impression conveyed by the product and examined the illustration on the front of the can. Whilst it was not immediately apparent what the character was, the Panel noted that the figure appeared to be balancing on one leg whilst walking a line which, when considered in the context of an alcoholic product, looked akin to someone balancing along a line to demonstrate sobriety. The Panel noted the company’s response to this point; that the line was there to provide perspective and nothing more. The Panel also noted the company’s explanation that it was not the character’s eyes that were red, but its eyelids. The Panel considered the illustration in this context. It noted that the characters eyelids were red, and it had a red nose which emphasised the intoxicated nature of the character. The Panel considered the image in context alongside the phrases ‘Easy IPA’ and ‘Session IPA’ and while the terms Easy IPA and Session IPA were not in and of themselves problematic, the Panel was concerned that, when considered alongside the image the product could be seen as encouraging drunkenness.
The Panel discussed the complainant’s assertion that the product had a particular appeal to under-18s. The Panel considered the adult illustration on the front of the can and noted that it was not childlike in its design. In addition to this, the Panel noted that the product used a solid colour wash for its background with no bright contrasting colours and did not contain any references to childlike behaviour. Accordingly, the Panel did not uphold the product under Code rule 3.2(h).
Despite the company’s explanation that the line was provided for perspective, and the explanation of the character’s features the Panel concluded this further information did not change the overall impression. When considered alongside the phrases ‘Easy IPA and ‘Session IPA’; the use of an inebriated-looking creature balancing on one leg presented as an indication of drunkenness. Accordingly, Panel upheld the decision under Code rule 3.2(f).