Producer:
Phusion Projects
Complaint:
‘LOKO suggests mental health issues which are at the forefront of government initiatives in the current climate. We cannot denigrate mental capabilities……Given the rise in, as yet, unregulated social media leading to numerous examples of impressionable adults committing self harm, up to actual suicide, the issue is regarded with higher importance than 8 years ago, at the time of the last complaint. Social media usage has catapulted; in 2014, TikTok didn’t even exist. Launched in late 2017 it had 1.8% share of U.K. smartphone users. Latest figures (2 years later in December 2019) had seen it almost quintuple to 8.7% usage. Words and phrases in common usage in the 80’s and 90’s are now seen as abhorrent in today’s societal cultures……Words such as “Loko” and the phrases coming from that are already raising concerns with those health professionals dealing with an ever increasing burden on the nations mental health, now seen as relevant a disease as is cancer and heart problems’
Complainant:
Mr David Kent on behalf of Corinthian (CBL) Brands Ltd
Decision:
Under Code paragraph 3.3
3.3 A drink’s name, its packaging, and any promotional material or activity should not cause serious and widespread offence
NOT UPHELD
The company’s submission
The company stated that it took its responsibility as an alcohol producer seriously and that the marketing of Four Loko did not encourage irresponsible consumption or contravene the Portman Group Code in any other aspect. The company explained that it had sought a view from the Portman Group Advisory Service in 2015, and in 2021 prior to the relaunch of the Four Loko brand in the UK.
The company acknowledged that all complaints would be treated in accordance with due process by the Independent Complaints Panel (Panel) but highlighted that the complaint was submitted by a competitor rather than a consumer.
Addressing the complaint, the company stated it did not believe that Four Loko could cause serious or widespread offence, and this was the first complaint it had received in that regard. The company explained that ‘loco’ in Spanish could be directly translated to mean ‘crazy’, however the reference in the name ‘Four Loko’ was to the product itself. In particular, the original ingredients used and the original four flavour combinations in which the drinks were available.
The company explained that the capacity for a word or phrase to cause serious or widespread offence would be dependent on the context in which it was used. While ‘crazy’ or ‘loco’ could be deemed offensive if directed at an individual or group, ‘crazy’ could also be used in common parlance to describe the ‘zaniness’ of an object or situation. The company cited the September 2016 study by Ofcom and Ipsos Mori into ‘Attitudes to potentially offensive language and gestures on TV and Radio’[1], which listed 17 words considered to be potentially offensive or derogatory in the context of physical or mental health. The study was updated in September 2021[2], to include 23 words, however ‘loco’ or ‘crazy’ did not appear in the 2016 or 2021 study respectively. The company noted that the report also highlighted the importance of context in which a word is used to determine whether it would cause offence.
The company referred to the precedent set by the Panel in the Original Nuttah case, which considered the context of how the word was used. The company noted that the Panel stated that the word ‘nutter’ was a derogatory term to those who suffered from mental illness. The company explained that ‘nutter’ was generally only used to refer to an individual, rather than to describe an experience or inanimate object in the way that loco or crazy were used, such as ‘crazy golf’.
Furthermore, the company stated it believed the packaging of the drinks was compliant with the wider Code. The company reiterated it had worked with the Portman Group’s Advisory Service in 2015 and in 2021. Subsequently, multiple changes were made to the content of product, packaging and the brand such as the inclusion of responsible drinking messages, and the removal of anything in the marketing which could be misinterpreted as encouragement to drink irresponsibly. The changes included:
- Reduction in the alcohol content and packaging size to ensure the number of units per single serve packaging was 3.74 units;
- The recommended price point for Four Loko was chosen to position the brand as a premium product to appeal to consumers aged 18-30 with disposable income;
- The packaging was amended to highlight it was an 18+ product, should not be consumed while pregnant and should not be consumed before driving. The packaging also included responsible drinking messages to convey that consumers should not drink more than 14 units of alcohol per week, and sign posting to the Drinkaware website;
- The packaging clearly communicated the drink’s alcoholic nature without overemphasis of the alcoholic content;
- The word ‘loko’ did not appear in isolation in UK marketing materials but instead the full brand name was always used: ‘Four Loko’. UK branding and marketing also avoided any associations with ‘crazy’, ‘madness’ or ‘off your head’ themes which could be misinterpreted as encouraging immoderate consumption.
Finally, the company explained that for nearly 10 years, Four Loko drinks have not contained caffeine, taurine or guarana.
The Panel’s assessment
The Panel agreed to discuss Four Loko Blue, Four Loko Fruit Punch, Four Loko Gold and Four Loko Sour Apple concurrently as the complaint primarily regarded the brand name and all were similar in design. The Panel noted that four, Four Loko products had previously been considered in 2014 under the Fifth Edition of the Code. At the time, the products had been found in breach of Code rule 3.2(f) but not in breach of Code rules 3.2(b) and 3.2(j). In the absence of any new evidence that would change the 2014 precedent, the Panel did not reconsider the products under the Code rules that had previously been reviewed in 2014. As Code rule 3.3 was not part of the Fifth Edition of the Code in 2014 it was agreed this was a new element for the Panel to consider in this case.
The Panel noted that ‘loko’ was phonetically similar to ‘loco’ in Spanish which translated to ‘crazy’ in English. The Panel considered that ‘loco’ would not necessarily be understood by all consumers to mean ‘crazy’, although some would be familiar with the phrase.
The Panel discussed accompanying guidance to rule 3.3 and noted that whilst complaints would be considered on a case-by-case basis, the rule was designed to prohibit marketing that was discriminatory, derogatory and demeaning. The Panel considered this alongside the 2021 study by Ofcom and Ipsos Mori entitled ‘Attitudes to potentially offensive language and gestures on TV and Radio’[3] and noted that ‘loco’ and ‘crazy’ did not appear as words which were likely to cause offence.
The Panel discussed Original Nuttah a case precedent cited by the producer in its response to the complaint,. The Panel noted in that particular context, the word ‘nutter’ was found to be a derogatory term targeted at a group, namely those with mental health issues and the complaint was subsequently upheld.
The Panel considered the word ‘crazy’ and noted that it had multiple connotations depending on whether it was applied to an experience or directly to an individual. The Panel noted that ‘loco’ or ‘crazy’ could be used positively to describe an experience, object or situation. Conversely, it could also be used as a negative term in reference to an individual or group. The Panel also noted that the Ofcom report highlighted the importance of context in which a word was used to determine whether it was offensive and considered that context would therefore be paramount in determining whether the packaging of Four Loko was likely to cause serious or widespread offence.
The Panel discussed the packaging and the context in which ‘Four Loko’ appeared. The Panel noted the cans had a muted design and included factual text, none of which referenced mental health or alluded to ‘crazy or ‘loco’ behaviour. The Panel noted the company’s point that the name was always presented as ‘Four Loko’ in UK marketing, and that ‘loko’ was not used on the drink’s label, or in wider marketing materials, in isolation. The Panel also noted that the name ‘Four Loko’ was derived from the four ingredients and flavours of the drinks and only used in this context. When considering the overall impression of the packaging, the Panel determined there were no elements which were demeaning, derogatory or discriminatory, and that there was no evidence to suggest that ‘loko’ was used to target or refer to those who suffered from mental health issues in a derogatory manner.
On this basis, the Panel concluded that Four Loko did not cause serious or widespread offence. Accordingly, the complaint was not upheld under Code rule 3.3.
Action by Company:
None required.
References
[1] Attitudes to potentially offensive language and gestures on TV and Radio, Ofcom and Ipsos Mori, September 2016 https://www.ofcom.org.uk/__data/assets/pdf_file/0022/91624/OfcomOffensiveLanguage.pdf
[2] Attitudes to potentially offensive language and gestures on TV and Radio, Ofcom and Ipsos Mori, September 2021 https://www.ofcom.org.uk/__data/assets/pdf_file/0021/225336/offensive-language-summary-report.pdf
[3] Attitudes to potentially offensive language and gestures on TV and Radio, Ofcom and Ipsos Mori, September 2021 https://www.ofcom.org.uk/__data/assets/pdf_file/0021/225336/offensive-language-summary-report.pdf