Producer: Van Pur S.A.
Final Decision: 30 January 2020
Considered under the 6th Edition of the Code.
“Although there is no direct reference to the strength of the product, the red and bold font of the alcohol strength at 9% against a black background gives indirect reference to the alcohol strength. Additionally, the product is 4.5 units in a 500ml can.
The product’s packaging and alcoholic strength encourages immoderate consumption, as the number of units at 4.5 exceeds the recommended dose in a single -serve container. There seem to be no mitigating factors in favour of the packaging, which lacks a ‘share’ message or a ‘per serve’ recommendation, it is non-resealable, the producer is not able to demonstrate that the contents are to be shared (by decanting) or consumed over more than one sitting. Although there is a reference to the Drinkaware website and the number of units in the container, this does not diminish the fact that this stronger than average lager is to be consumed at one sitting by one consumer”.
Zenith Global (as part of the independent audit of the Sixth Edition of the Code 2019)
Under Code paragraph 3.2(a)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way give the higher alcoholic strength, or intoxicating effect, undue emphasis. A product’s lower alcoholic strength may be emphasised proportionately when it is below the average strength for similar beverages. Factual information about alcoholic strength may be given.
Under Code paragraph 3.2 (f)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness.
The company’s submission
The company firstly stated they did not believe the information ‘9%’ was misleading to the average beer consumer. The company referenced art. 7 of Regulation 1169/2011 and said that, in light of decisions from European Court of Justice, it could be assumed the average beer consumer would not be encouraged to consume more of the product due solely to the presentation of the alcoholic strength in the product. The company stated “Karpackie 9%” was an element of the name which could be provided on a voluntary basis under article 36, section 2 of that Regulation.
The company noted the product had a high alcoholic strength per unit package and as such was classified as a super strong lager. They said the law did not prohibit such products and stated that they sold the product in numerous countries worldwide. They said that, in their experience, most manufacturers of beers in this category presented the alcoholic strength on the front of the can in a clear manner.
The company said they believed 9% was factual information about the alcoholic strength of the product. The company noted rule 3.2 (a) did not specify the “higher alcoholic strength” referred to, as opposed to lower alcoholic strength. They said 9% was a typical strength for beer in this category and argued that “9%” did not emphasise that the beer was stronger than other similar ones.
The company stated 3.2 (f) was a general standard and did not specify what exactly encouragement of immoderate consumption was. The company said it was not possible to claim the labelling encouraged immoderate consumption, when looking at the labelling from a comprehensive perspective. The company said “9%” was a message that clearly warned to consumers about the type of product it was. They emphasised that the lack of this information could be misleading and could lead consumers to purchase a beer stronger than planned. The company referred to another range of beers that identified one product in the range with the alcoholic strength.
The company stated they did not wish to limit themselves to placing a warning about alcohol consumption through the drink responsibly icon. They explained they also wanted to add a note that the product contained more than one recommended portion and that it must be consumed responsibly. The company said they wanted to add information recommending that consumers divide the consumption of their 9% beer over more than one portion, with the declaration ‘best served shared’. The company added they had faith in the consumers rationality. They argued that the alcoholic strength presented on the packaging did not indicate that the manufacturer encouraged consumption of excess amounts of alcohol. They said they understood that certain recommendations about beer consumption were assumed for adults, but those recommendations had no legal effect when it came to product labelling.
The company said 3.2(a) and 3.2(f) could be interpreted differently: they argued that one might take a subjective approach, as they believed the complainants had, but they believed it was better to refer to objective criteria such as the average consumer. The company expressed concern that a “subjective interpretation” of standards as general as these concerning a product, which fulfilled the requirements of commonly effective law, might lead to groundless commercial barriers ie infringe upon free movement of goods and free competition. They argued that this would consequentially lead to unauthorized restriction of the manufacturer’s freedom to format the message concerning the product.
The company maintained that the naming “9%” on the front of the can did not infringe the Code. They said they would like to continue to communicate that information, also because they wanted to allow consumers to have a choice in the diverse offer of beer, including both light, mainstream, strong and super strong lagers.
The company said that they were planning to modify the packaging to add the message “the can contains more than 1 recommended serving – drink responsibly and do not abuse alcohol”. The company said that, after looking at products from other manufacturers in other markets, they planned to add ‘vol.’ or ‘alc.’ after “9%”, to make it clear that this information concerned alcohol strength. They said they also planned to add “best served shared”, which they said was a common and approved market practice. After receiving the Panel’s provisional decision, the company said they were planning to change the packaging and asked to meet the Panel in person to discuss their new design. They explained that they were also making changes to the whole Karpackie product line, to meet the requirements of new European legislation. They sent an initial design for the new packaging and asked for the Panel to delay their final decision by three or four months.
The Panel’s assessment
The Panel noted the Advisory Service’s guidance for the new Code, which they had seen and discussed at a previous meeting, and in particular the guidance that:
containers which are typically single-serve, and whose contents are typically consumed by one person in one sitting, should not contain more than four units. This position has received support from the CMO’s and the Department of Health and Social Care (DHSC) as an appropriate threshold to help reduce alcohol-related harms.
The Panel considered that single-serve containers containing more than four units of alcohol risked encouraging immoderate consumption; they noted that research had found consumers regarded 500ml cans as single-serve products. The Panel noted this product stated it contained 4.5 units of alcohol. They also noted the packaging included the Chief Medical Officer’s weekly consumption guidelines and the drinkaware.co.uk address and but considered that this information was inconspicuous and printed in small type.
The Panel considered that because the container was not resealable, was of a type typically consumed by one person in one sitting and contained 4.5 units, the product was likely to encourage immoderate consumption. The Panel acknowledged the company’s intention to add a sharing message to the can in the future, but noted that it was considering the product as it was currently packaged.
The Panel also discussed whether the packaging gave undue emphasis to the strength of the product, which they noted was higher than the average strength for the lager category. The Panel acknowledged that producers needed to communicate the strength of their products and to differentiate products within the same range, which was useful information for the consumer. The Panel considered, however, that incorporating the ABV into the brand name of a product, when it was higher than the average strength for the category, risked giving undue emphasis to the strength. The Panel therefore gave careful consideration to the presentation of strength on this product. They noted that “9%” appeared in large red type and considered that it was a prominent element of the design, and the most prominent text on the can. They noted that other products in the Karpackie range had a similar design but were differentiated by name, whereas this product variant was differentiated with a number. The Panel considered that it would be possible to refer the higher strength with phrases such as “extra strong” or “import”, which they believed would indicate to consumers that the product was stronger than others in the same brand family without giving undue emphasis to the higher strength. The Panel was concerned that highlighting “9%” in prominent red type emphasised the higher strength, and was further concerned that this might appeal particularly to those who were vulnerable, in this case because of their drinking. The Panel noted that for the first time, the introduction to the new Code referred to consumers who may be vulnerable. They concluded that this presentation went beyond giving factual information and gave undue emphasis to the higher strength of the product.
The Panel acknowledged that the company was based outside the UK and may have been unaware of the Code, or the advice available through the Portman Group’s Advisory Service, when they designed the packaging. The Panel welcomed the company’s willingness to make changes to bring their product into line with the Code and noted they were planning to redesign their packaging across the Karpackie product line in the near future. The Panel confirmed that its decision related to the version of the packaging that the complainant had identified, however, and was not able to comment on the proposed redesign.
The Panel concluded that the packaging of this product breached Code rules 3.2(a) and 3.2(f).
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