Company: Tipple Brands Limited
Final Decision: 13 September 2018
Considered under 5th Edition of the Code.
Tipple Brands Limited
‘The cartoon images on the product have the potential to attract children. The nutrition claim also adds to the promotion of the product almost saying it’s healthy. I believe you can’t say “no added sugar” on alcohol. HappyDown is an alcoholic cocktail mix. https://happydown.co.uk’
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(j)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that the product has therapeutic qualities or can enhance mental or physical capabilities.
The company’s submission
The company stated that it takes its responsibility as a ‘Drinks Start Up’ seriously and did not promote its products to underage drinkers; or, as the complainant had implied, make claims that its products were healthy. The company said it was not aware that it had ever received any complaints since the launch of HappyDown sparkling cocktails in June 2017.
The company responded to the complainant’s view that the packaging of HappyDown sparkling cocktails appealed to under-18’s by asserting that all elements of the cans’ packaging had been designed to appeal to an adult demographic of a 25-45 age range, who were the core consumer base. The company explained that the artist employed to create the brand design was chosen due to their specialism in adult content, and that the design was crafted to embody the brands philosophy of retro pop art. The design was chosen to create a nostalgic feel and the facial images on the cans were deliberately made to look mature so as not to appeal to under-18s. The company went on to explain that they had purposely chosen sophisticated and complex flavour combinations to target adult consumers.
The company then addressed the complainant’s view that the product was being promoted on the basis that it was healthy by making a nutritional claim. The company refuted the complainant’s claims that the packaging and promotion of the product included a ‘no added sugar’ message and confirmed this had never been included on the product or through any advertisement of the product. The company confirmed that the packaging displayed infographics to indicate the product’s calorie content and natural flavours, to communicate that it did not contain any preservatives and, was gluten free. It maintained however, that these were factual statements and not included to mislead consumers into concluding that the product had health benefits. The company further maintained that several cues on the packaging alerted the consumer to its alcohol content – the front of the can included the phrases ‘crafted sparkling cocktails’ and ‘refreshing alcoholic premix’ with the 4% ABV visible at the bottom of the can. The company also said the back of the can reiterated the product’s alcoholic nature through the message that it was a ‘fortified wine’, its ABV and a ‘drink responsibly’ message. The company highlighted that the brand was positioned as an alcoholic cocktail drink, and not as a health product and was stocked by retailers within the designated alcohol sections.
The company summarised that when taking a holistic view of the products, they did not have the potential to appeal to under-18s or to be mistaken as a health product.
The Panel’s assessment
The Panel considered the overall impression conveyed by the products and noted that the colour pallet used in the design, although of contrasting colours, was adult in nature. The Panel noted that each can featured a variation of an illustration of an adult male’s face, and that it was stylised to be reminiscent of pop art. The Panel considered that the product was a good example of how bright colours and an illustrative style had been used in a way that maintained a mature theme and avoided particular appeal to under 18s. The Panel concluded that, for all of the cans, taking all the elements of the cans’ designs together, they did not have particular appeal to under-18’s and accordingly did not uphold the products under Code rule 3.2(h).
The Panel then discussed the complainant’s view that the product made health claims which would be in breach of Code rule 3.2(j) on therapeutic claims. The Panel analysed the text on the entirety of the cans and did not find a ‘no added sugar’ cue as claimed by the complainant and, furthermore noted that it was not aware of a ‘no added sugar’ claim appearing on any promotional material. The Panel did note that because the cans contained infographics that the products were gluten-free, etc., this may have led the complainant to suggest the producer was making a ‘no added sugar’ claim. In response to this the Panel confirmed that producers are able to make factual statements regarding a product’s contents or production process in order to inform consumers. The Panel considered that the products did not make any therapeutic claims on their packaging and accordingly did not uphold the complaint under Code rule 3.2(j).
The Panel went on to discuss the alcoholic nature of the products and how this was presented on the packaging. The Panel noted that the cans featured several indicators of the products’ alcoholic nature, namely the words ‘cocktails’, ‘fortified wine’ and ‘alcoholic premix’, and the ABV product strength statement. The Panel expressed concern however that these cues were not immediately obvious and were further compromised by the cumulative impact of the negative cues. The Panel concluded that the product did not communicate with absolute clarity its alcoholic content and accordingly found the product in breach of Code rule 3.1.
Finally, the Panel considered the name ‘HappyDown’ and discussed the use of the word ‘down’ in the context of encouraging the consumer to rapidly ‘down’ the product in one. The Panel noted that the serving suggestion on the back of the can encouraged the consumer to pour the drink over ice, and sip through a straw which they noted was commendable. The Panel considered that the word ‘down’ alone was not necessary problematic for an alcoholic product. The Panel concluded the name ‘HappyDown’ when taken together with the serving suggestion and the overall impression conveyed by the product was not in breach of code rule 3.2(g).
Action by the Company
The company has worked with the Advisory Service to address the issues raised under rule 3.1.