Company: Asda Stores Ltd
Final Decision: 24 March 1999
Considered under the 2nd Edition of the Code.
“Under 3.1a, ‘Exotica‘ suggests confusion [as to the alcoholic nature. You can‘t read the alcoholic ingredient as the background is dark purple; neither is the word alcoholic used on the front of the bottle (3.2b and 3.2ii). It suggests sexual connotations ... in its name (and in the wording] ‘Close your eyes imagine yourself on an exotic sun–kissed beach sway in the breeze one sip and you just could be in paradise!”
Member of the public from Coventry.
Under Code paragraph 2.3(i)
All companies connected with the alcoholic drinks industry in the UK (whether as producers, importers, wholesalers or retailers) must take all necessary steps to ensure than the provisions of this Code are respected and, in particular, that the alcoholic nature of the drinks produced or sold by them is clearly brought to the attention of the consumer in a responsible manner.
Under Code paragraph 3.1(a)
The brand name, product descriptor, packaging (including any containers and any external wrapping), labelling and point of sale materials of any alcoholic drink should not in any direct or indirect way suggest any confusion as to the alcoholic nature and strength of the product, but should clearly communicate the alcoholic nature of the product and its strength to the purchaser or consumer.
Under Code paragraph 3.1(e)
The brand name, product descriptor, packaging (including any containers and any external wrapping), labelling and point of sale materials of any alcoholic drink should not in any direct or indirect way suggest sexual success or prowess.
The company’s submission
The company considers that the brand name is like any other which does not distinguish the alcoholic nature of the drink, e.g. ‘Malibu‘ or ‘Southern Comfort‘, but which “captures the general flavour of the product itself“. It does not agree there could be any confusion with a soft drink because:
- The words ‘white rum‘ are “highlighted on the front in purple lettering” and are “very visible against a black background“;
- the abv is clearly marked;
- the reverse of the bottle includes “a very prominent grey triangle” containing the words ‘not for sale to anyone under the age of 18‘, a list of ingredients in purple type against a black background and a symbol indicating the number of units of alcohol contained in the bottle;
- the product is merchandised in the beers, wines and spirits area.
The company does not believe the packaging has any sexual connotations. It states that “the word ‘Exotic‘ simply means foreign” and that the wording relating to ‘an exotic sun–kissed beach‘ emphasises this meaning.
The company assures the Panel that checkout operators are trained in responsible merchandising and that tills are programmed to give an audible and visible prompt when alcoholic drinks are scanned.
The Panel’s assessment
The Panel considered a sample of the product provided by Asda and the dossier. At its meeting on 24 March 1999 the Panel also carefully considered the company‘s further representation dated 16 February 1999.
The Panel noted that the abv was given on the front and rear of the bottle and that, in addition, the number of units of alcohol contained in the bottle was stated on the rear. The Panel also noted that the words ‘white rum‘ were included on the front of the bottle; however they were not first in the list of ingredients and were written in dark (purple) lettering against a black background which the Panel considered made the words difficult to read. On balance, the Panel decided that these features were not sufficient in this case clearly to communicate the product’s alcoholic nature and strength. In the Panel’s view the alcoholic nature of the drink was not clearly brought to the attention of the consumer in a responsible manner” as required by the Code, and hence there could be confusion as to the alcoholic nature of the product.
Accordingly the Panel upheld the complaint under Code paragraphs 2.3(i) and 3.1(a).
The Panel was pleased to note that the company had asked or advice on making the lettering describing the alcoholic nature of the product more prominent, but pointed out that such advice should be sought from The Portman Group’s Pre-Launch Advisory Service and not from the Independent Complaints Panel.
The Panel noted that the word ‘exotic’ was sometimes used with sexual connotations, for example in the expression ‘exotic dancer’ meaning ‘a striptease dancer’. It considered that the word ‘exotica’ was reminiscent of ‘erotica’, defined as ‘explicitly sexual literature or art’. Furthermore it noted that there was a regular “soft porn” television programme on the Live TV cable channel called “Exotica Erotica”. The Panel considered there was a suggestion of sexual innuendo in the wording “close your eyes imagine yourself on an exotic sun-kissed beach sway in the breeze one sip and you could just be in paradise” and “complete satisfaction or your money back” (especially since the words “complete satisfaction” were in large bold letters). While the product’s name did not of itself necessarily contravene the Code, on balance the Panel concluded that the name in conjunction with the packaging in dark colours and the wording on the bottle referred to above gave an indirect suggestion of sexual success or prowess. For that reason, and taking into account paragraph 2.2 of the Code requiring that the Code be applied in the spirit as well as in the letter, the Panel upheld the complaint under paragraph 3.1(e) of the Code.
Since in the Panel’s view the product was “clearly one of adult appeal” it did not consider further the provisions of Code Paragraph 3.2.
Action by company
The company ceased production of the product and as of 12 May 1999 all steps had been taken to dispose of remaining stock by the end of May 1999. No further action required.