“This drink looks as if it’s aimed at children. It should not be sold in such packaging or with the pearlised effect of the product. Very concerning. I actually thought it was little girls bubble bath”.
Portman Group acting in lieu of a referral from the Advertising Standards Authority
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 (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators)
The company’s submission:
The company began by explaining that Zymurgorium as a brand, was well-known for its inventive drink flavours. The company stated that its creative experimentation with different flavour combinations was something its customer base expected from its product range.
The company explained that its packaging was equally as important to the brand as its inventive flavours. The company stated that each bottle of gin in its range was presented in a sophisticated glass bottle containing layered hexagons and a handcrafted dipped wax seal. The company explained that the artwork for each bottle was developed with professional artwork designers to create the look and feel of a sophisticated and intricate premium product.
The company stated that the Flagingo product was based on 1970s and 1980s rock and roll, and that an older generation of adults would identify it with similar album covers from the time.
The company highlighted the Flamingo Tears Pink Grapefruit Gin case that the Panel had ruled on in 2019. The Panel ruled that flamingos had broad appeal to a wide range of age groups and that they did not have particular appeal to under-18s. The company addressed the illustrations on Flagingo and stated that whilst the flamingos were drawn using a stylised black illustration, they were not overly cartoon like in their design. The company also highlighted that the label contained other flamingos and music equipment which meant that the image did not have a single focal point.
The company stated that the imagery of the label would appeal to an older generation of rock and roll fans and to those who were familiar with acts such as AC/DC, Pink Floyd, David Bowie, Metallica, Def Leppard and Guns N’ Roses.
The company then addressed the text used on the label and highlighted that the word ‘flamingo’ was changed to ‘FlaGINgo’ to reflect that the product was a gin and was presented in a larger and different colour font to stand out. The company pointed out that there was a lot of text to read at the top of the label and on the two sides next to the flamingos which it said under-18s would not be typically drawn to, as this demographic preferred products that conveyed messages in a smaller number of words. The company explained that the font used was a Saxon derivative of roman typeface and that it contained roman numerals which would not have particular appeal to under-18s. The company also noted that the label did not use a single type of font and so the eye would not be drawn to any one part of the text, and therefore would be unlikely to have a particular appeal to under-18s.
The company explained that the bee image was the Zymurgorium brand logo. The company stated that bees appealed to all age groups due to their multi-functional abilities and were arguably more popular amongst adults due to the benefits they presented to the environment and to general well-being. The company explained that as a Manchester based business, the worker bee was chosen as one of the best-known symbols of Manchester and has been the emblem for the city for over 150 years denoting a Mancunians’ hard work ethic and the city being a hive of activity. The company stated that the image used intricate lines which gave the bee a life-like, rather than cartoon effect. The company highlighted the Panel’s previous decision against Zymurgorium’s Rhubarb and Cranberry Gin Liqueur which also considered the use of the bee image but did not find the product in breach of the Code.
The company then focused on the complainant’s assertion that the product had a ‘pearlised effect’. The company explained that the product contained Candurin which gave it a shimmer effect but noted that it would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously. The company highlighted the Flamingo Tears Gin and Pixie Tears Gin Panel decisions which featured products that both contained the same ingredient and resulted in the same shimmer effect as Flagingo. In those cases, neither complaint was upheld under rule 3.2(h).
In response to the complainant’s point about mistaking the product for child’s bubble bath, the company stated that the product would only be found in the spirits aisle of shops and that the RRP of the product was £14.99, in comparison to child’s bubble bath that had an average price of £1 to £3.50. The company also stated that the product was clearly identifiable as an alcoholic product and so would not be confused with child’s bubble bath.
In regard to the product communicating its alcoholic nature with absolute clarity, the company pointed out that the front label stated the alcoholic nature with the descriptor ‘gin based liqueur’ and that this was in black capitalised font. The company stated that the alcoholic strength by volume (ABV) of 20% was in bold, black, capitalised text and was in a hexagon shape in order to stand out from the rest of the label. The company also highlighted that the side of the label contained relevant regulatory information including the UK pregnancy warning, a reference to alcohol units and a link to the Drinkaware website. Lastly, the company mentioned that the shape of the bottle was that of traditional spirit bottles and the top contained an anti-tamper seal which contributed to the product’s positive alcohol cues. The company therefore believed that the product clearly communicated the alcohol nature of the drink and would not be mistaken for a product that was suitable for under-18s and that the wax seal at the top of the bottle would denote the quality and sophistication of an adult product.
The company then referenced a number of previous cases considered by the Panel under rule 3.2(h) of the Code and highlighted how these cases were similar to Flagingo.
The first ruling the company referenced was Thrillseeker which was considered by the Panel in 2019. The company highlighted that the Panel ruled that the images on Thrillseeker were adult in nature due to the graphic novel style of the design and that the spacemen illustrations could be seen to have appeal to both adults and children but that it would be unlikely to have particular appeal to under-18s. The company did not believe that Flagingo would have more appeal than Thrillseeker and that for the reasons set out above, it would have more appeal to an older generation of adults.
The second ruling the company highlighted was Pixie Tears which was also considered by the Panel in 2019. The company stated that in the Pixie Tears case the Panel ruled that the art-deco line drawing of the pixie was unlikely to have particular appeal to under-18s, but that fairy-tale characters could hold potential appeal depending on the imagery used. In that case, whilst the Panel had considered the use of the pixie was close to the line in terms of acceptability, as it was not drawn in a cartoon-style, it was not considered to have appeal to young children. The company stated that the image of the fairy was created using thick, bold lines which were more simplistic and cartoonish than any of the images used on Flagingo.
The third ruling the company referenced was the Zymurgorium Forced Darkeside Gin case which looked at, in part, whether it breached rule 3.2(h), but the Panel did not uphold. The company stated that Flagingo would not have more appeal to under-18s than the Forced Darkeside Gin which it believed had more exciting artwork. The company highlighted that in that case, the Panel had considered that Star Wars and similar sci-fi genre fans varied in age and did not therefore have particular appeal to under-18s. The company explained that in the Flagingo case, rock and roll fans would also be varied in age, but as previously stated, the product would have more appeal to an older generation of adults.
The fourth ruling the company highlighted was the Flamingo Tears Gin case, where the Panel had ruled that whilst flamingos might have some appeal to a teenage market, it was not predominantly so and that their appeal was broader and would appeal to an adult demographic as well. The company also argued that the Panel had found that the illustration of the flamingos in that case was mature and stylised and that the font was staid. With regard to the shimmering effect of the liquid, the Panel considered that the overall design of the product was unlikely to have appeal to under-18s. The company stated that the flamingo and flower illustrations on the Flamingo Tears product were more cartoonish and likely to appeal to under-18s than the imagery on Flagingo. The company also highlighted that the bottle for Flamingo Tears was not the shape of a traditional spirit bottle and looked much more like a nail polish bottle. The company also believed that the bubbled, spaced out text on Flamingo Tears would be more appealing to youth culture than any of the fonts found on Flagingo.
The fifth ruling the company highlighted was the Fynoderee Manx Bumbee Vodka which was not upheld on all points, including in regard to rule 3.2(h). In that case the Panel had found that whilst the design was whimsical, it was mature in design and the illustrations were adult in style. The company argued that Flagingo was similarly mature in its design. However, the company believed that the alcoholic strength by volume of the product stood out more on Flagingo, in comparison to Fynoderee Manx Bumbee Vodka as it appeared in the honeycomb and therefore blended into the background.
The sixth ruling the company highlighted was the Gamma Ray case, which was not upheld in all aspects of the complaint, including in regard to rule 3.2(h). The company highlighted that the Panel sought expert opinion on how colours could appeal to under-18s. The expert advice had stated that when creating visuals that appeal to children, the importance was on the level of luminance and contrast between the colours, rather than just bright colours. The expert opinion stated that bolder colours with greater contrast had more appeal to children. With regard to the decision made by the Panel, the company concluded that the contrast between the colours was not strong and on the basis of the colour of the packaging alone, would not have particular appeal to under-18s. The company argued that based on the Gamma Ray ruling, the same conclusions should also be drawn as Gamma Ray used the three bold colours of blue, red and yellow, whereas Flagingo used various blends of blue and pink.
The company also highlighted that in the Gamma Ray case, the Panel considered that whilst there was a risk of inadvertent appeal to teenagers aged 16 to 17 who might want to emulate adult behaviour, the images in question were of an adult nature. The company believed that the illustrations of the flamingos in a 1970s and 1980s rock and roll theme was less likely to have appeal to under-18s in comparison to an image of a skeleton in a spacesuit wearing underpants and holding a laser gun. The company stated that Flagingo would not have more appeal to under-18s than Gamma Ray.
The seventh ruling the company highlighted was the Lazy Sod case considered by the Panel in 2014 and was not upheld in all aspects of the complaint, including in respect to rule 3.2(h). The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular amongst a wide range of ages, it was particularly popular with children and teenagers and noted that the image of the monkey was a cartoon-style. However, the Panel had concluded that the product did not have particular appeal to under-18s. The company argued that Flagingo was not humourous and that the image of the flamingos and bee was more sophisticated than the cartoon monkey.
The eighth ruling the company highlighted was Grumpy Git that was also considered by the Panel in 2014 but was not upheld, including in regard to rule 3.2(h.) The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular among a wide range of ages, it was particularly popular with children and teenagers and recognised the cartoon-style of the image of the old man. However, the Panel had concluded that it did not have appeal to under-18s. The company argued that the imagery and font of Grumpy Git was more likely to have appeal to under-18s than the imagery or font used on Flagingo. The company also suggested that Flagingo was mature in its appearance and feel, in comparison to Grumpy Git where the text and cartoon of the old man were funny and the colours were bold and artificial.
The ninth case the company submitted was the Unicorn Tears Raspberry Gin Liqueur and the Unicorn Tears Gin Liqueur which were both found by the Panel to breach rule 3.2(h) of the Code. In those cases, the Panel acknowledged that the unicorn imagery could hold broad appeal to all age groups. The Panel also found in those cases that the illustrations of the unicorns had the appearance of a child’s drawing and would not be out of place as a logo on a child’s product. The Panel noted that the thick, uneven typeface further compounded the childlike presentation of the products. The Panel also compared the illustration and typeface in the context of the previous expert opinion that it had received in the Gamma Ray case which stated that bold black lines were a marketing tool used to appeal to children. In contrast, the company argued that Flagingo did not use thick black lines or typeface in its imagery or font and that a high level of skill and design had gone into the creation of this product which distinguished it from both Unicorn Tears products. Lastly, the company argued that the Unicorn Tears bottles resembled a nail polish bottle and was not in the traditional spirit bottle shape that Flagingo was in.
In conclusion, the company stated that whether looking at individual features of Flagingo, or as a whole, it would not, either directly or indirectly have a particular appeal to under-18s.
The Panel’s assessment:
The Panel discussed whether the product should be considered under any Code rule other than 3.2(h) as raised by the complainant. The Panel agreed that this was not required.
The Panel carefully considered the producer’s response. The Panel noted that the company had provided an extensive and detailed written submission and commended the producer for its response to the complaint.
The Panel discussed whether the product packaging had a particular appeal to under-18s and considered the individual design elements of the packaging as well as the overall impression conveyed. The Panel considered the presentation of the flamingos on the front label and acknowledged that whilst the birds were anthropomorphised, they were stylised in a 70s and 80s rock style, akin to AC/DC. The Panel also noted that the flamingos were not drawn with thick bold lines but were instead depicted in a fantastical graphic novel style. The Panel reiterated its point that flamingos could hold a broad appeal for all age groups and did not have a particular appeal to under-18s in and of themselves. In addition to this, the Panel considered that the stylised flamingos playing rock and roll music were more likely to have appeal to an older generation of adults as opposed to particularly appealing to those under-18.
The Panel noted that the product incorporated a large amount of descriptive text in mature font on each side of the label which detailed the producer’s values and the tasting notes of the product which linked to the musical artwork theme. Alongside these elements, the Panel noted that the label also incorporated the company’s brand logo of a bee which it had previously considered as part of the Forced Darkeside Gin case and noted that its presentation in this context was not cartoon-like and was well-known as the emblem for Manchester where the producer was based.
The Panel discussed the overall impression conveyed by the product and noted the complainant’s concern that the product looked akin to bubble bath. The Panel considered the traditional shape of the bottle and the numerous positive alcohol cues on the product which included the word ‘gin’, the product’s alcoholic strength by volume and a UK pregnancy warning which clearly communicated the alcoholic nature of the product with absolute clarity. The Panel discussed further design features that included a pink wax seal on the top of the bottle which supported the producer’s assertion that the product was a luxury premium brand not aimed at children. The Panel noted that the product contained candurin to give the product a shimmer effect and discussed the producer’s response which stated that the product would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously. Upon closer inspection, the Panel considered that the product still had a shimmer effect when slightly turn by hand. However, the Panel considered that the combination of the dark purple liquid colour and shimmer effect did not have a particular appeal to under-18s.
Taking the above into account, the Panel considered that the adult style of the flamingo artwork, the 70s and 80s rock and roll music theme, dark purple liquid colour and shimmer effect of the liquid were unlikely to have a particular appeal to under-18s when considered as individual elements or when taken in combination and accordingly did not uphold the complaint under Code rule 3.2(h).
Action by Company: