19 March 2015
Considered under the 4th Edition of the Code.
‘This product is aiming at a young audience with images of cartoon characters and comic book styling. My 8 year old saw it and asked for some thinking it was a fruit drink. It is not acceptable to package in a can the same size as a fanta then make it look so appealing to young people. This is irresponsible at best and encouraging under age drinking’.
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(b)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous or anti-social behaviour.
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.
The company’s submission
The company began by saying it took its responsibilities as a brewer very seriously and did not promote its products to underage drinkers. It went on to comment on the fact that only one complaint had been received from a member of the public while it had distributed hundreds of thousands of cans. The company said this was the first instance of which it was aware of an adult making its beer available to a child. The company had examined the soft drink can mentioned by the complainant and, in its opinion, could find no similarities with the Gamma Ray design.
The company emphasised that it did not market its products; instead its success was down to word-of-mouth. The product is relatively expensive compared to others on the market and available only via specialist channels (not mainstream retailers) where the product’s target demographic were likely to frequent. The company explained that its demographic is 25-50 year olds, mostly employed in white-collar managerial or professional occupations with above average household incomes. In the company’s opinion this significantly limited the exposure to children in a retail setting and made under age possession or accidental purchase by children effectively impossible.
In their defense of the type of container used (a 330ml can), the company went on to explain that it had chosen a can (and not a bottle) because cans maintained the quality of the beer better than crown-cap bottles, and a smaller can size was chosen because these are commonplace is the USA (where the craft beer movement is better established). The company went on to add that they use small containers in order to encourage appreciation for the product, and not mass consumption.
On the broader issue of the colourful design and artwork of the can, the company said the following:
- The Gamma Ray design could not reasonably be mistaken for anything other than an alcoholic drink: it was clearly marked ‘ale’, specifying it was from a brewery and conformed to legal and Drinkaware requirements and guidance. Furthermore, its unique image was not used to market non-alcoholic products.
- The design was based upon, and explicitly referenced, adult themes. The design had been altered a number of times to ensure it was perceived as gruesome adult content (based on adult graphic novels and 50s sci-fi). By doing this the company stressed that it deliberately avoided images that could be construed as a reference to contemporary entertainment for young people and felt strongly that the imagery used would not resonate with current youth culture.
- The designer was hired based on his portfolio of previous work which contained no artwork specifically targeting young people. The company pointed out that their Creative Director is particularly well-known for macabre displays of mental states and gruesome narrative. The imagery was designed by an adult to appeal to adults.
- The company went on to say artwork was a fundamental part of its business, almost as integral as the quality of the product itself; this had been true from the inception of their products. Craft beer was an evolution of what was characterised by many adult beer-drinkers as the stale “real ale” industry, and it’s branding and artwork was intended to represent that.
The Panel’s assessment
The Panel began by recognising the company was trying to be innovative in the progressive craft beer market; the Panel agreed that producers should be lauded for innovation and creativity, especially with innovations in packaging size and design, but not at the expense of the Code.
The Panel considered whether the packaging communicated the alcoholic nature with absolute clarity as required under Code paragraph 3.1. The Panel noted the word ‘ale’ featured alongside the brand name, and there was a section on the side of the can which repeated this, alongside the alcohol by volume. In addition to this, the packaging also contained positive alcohol cues with references to ‘brewery’, unit content and ‘Drinkaware’. The Panel found that the product complied with European food labelling regulations and therefore did not breach Code paragraph 3.1.
When considering whether the drink’s packaging had a particular appeal to under-18s, the Panel was of the view that consumers took their cultural cues from the shape and size of a can and also from the information on the outside of the can. Bearing this in mind, the Panel went on to look at the size, colour and imagery on the packaging.
The Panel had recently had the benefit of expert opinion on colour based appeal to under-18s. The Panel heard that when creating visuals which appeal to children, marketing organisations do not primarily focus on bright colours, but instead place importance on the levels of luminance and contrast levels between the colours. Bolder colours with greater contrast tend to gain the attention of children. The Panel concluded that the contrast between the colours were not strong and therefore on the basis of colour the packaging would not have a particular appeal to under-18s.
While the Panel welcomed the use of smaller containers by industry to help encourage responsible consumption, it noted that the can size was not typical of cans containing alcohol available in the UK (mostly 440ml or more), but was the same size as a typical soft-drinks can. The Panel determined that it had to consider the overall impression conveyed by the product as a whole -rather than just the can size which alone was not a problem under the Code. The Panel emphasised that industry must be particularly mindful when using smaller can sizes to ensure the product does not resemble a soft drink.
The Panel debated at length the concept of nostalgia based products and whether these would have an inadvertent appeal to those under-18. In particular, the Panel considered whether these products could inadvertently appeal to aspirational teenagers in the 16-17 year old bracket who wanted to emulate adult behaviour. After much discussion the Panel agreed that while there was a risk of inadvertent appeal, the images in question were clearly of an adult nature.
The Panel also discussed the company’s assertion that its imagery was deliberately gruesome so as to appeal to adults and not children. This point was discussed in the context of the ever-popular Xbox and Playstation games with player ratings of 12 years of age, and particularly games certified for over 16s, which often featured violent/gruesome/ghoulish imagery. The Panel assessed the product against Portman Group guidance which sets out that a product should not “appeal to/resonate with under-18s in a way that it does not with over-18s”. While this could also create inadvertent appeal to teenagers, the Panel reiterated that the illustrations were of an adult nature and therefore did not have a particular appeal to under-18s.
The Panel acknowledged that this was a very difficult decision as the product was close to the line of breaching the Code. However, after carefully considering the adult nature of the illustrations they concluded that, on balance, the product did not have a particular appeal to under-18s and accordingly did not uphold the product under rule 3.2(h).
Going forward, the Panel made it clear that they will take cases very seriously if a producer uses images which could be seen to particularly appeal to teenagers. The Panel advises caution to producers using illustrations that may inadvertently appeal to the teenage demographic who could find the materials particularly appealing due to their wish to emulate an older peer group.
The Panel also deliberated whether the product packaging might breach Code rule 3.2(b): direct association with violent aggressive behaviour, but concluded that it did not breach this rule.
Action by company
No action required.