Company: Brookfield Drinks Limited
Final Decision: 11 December 2014
Considered under the 4th Edition of the Code.
“I wish to lodge a complaint to the independent complaints panel regarding the packaging and promotion of cans of 9% super-strength lager containing four and a half units of alcohol….
This complaint focuses on the particular contradictions arising from the marketing of these products. These drinks are produced in 500ml cans that cannot be resealed and contain four and a half units of alcohol. Typically they are consumed by single individuals…the consumption of a single can takes the individual above the government’s own daily alcohol unit guideline limits of 2-3 units for a woman and 3-4 units for a man.
The Portman Group’s Code of Practice states that ‘a drink, its packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption….3.2(f). The production of Kestrel Super in unresealable cans containing four and half units of alcohol in excess of government’s daily alcohol units guidelines therefore breaches rule 3.2(f).”
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 producer explained that Kestrel Super Premium Lager (Kestrel) was one of Scotland’s most popular selling beers. It went on to say that Kestrel was the first and only variant at 500ml in its category to refer to ‘sharing can’ in bold letters on the front and back of the can; this was supported by the product’s provenance message which read ‘…an award winning beer that can be savoured on its own, with fine food, or even better, shared with friends’, and repeated again on the company website: ‘a beer for sipping, possibly from a wine glass – and certainly one for sharing’.
The producer said it believed Code paragraph 3.2(f) of the Code did not distinguish between those products that were re-sealable and those that were not. It believed Thamesreach had not provided evidence to support its assertion that people consumed the whole can without sharing. The producer said that it had a customer database, and outlined the sources for it. The producer said that its own findings showed that a significant number of the people that consumed the product were middle class, who consumed it at home, sharing with their partners. These customers had told the producer that they consumed it as an alternative to wine because it had a lower alcohol content and they found it was not easy to put a cork back into a wine bottle once it was opened. The producer said that Kestrel had come a long way since 2008: the brand had been repositioned and a number of new variants had been introduced. Also, Kestrel was the only one amongst its competitive set to feature the words ‘sharing can size’ on the can and on the website. According to the producer 80% of its database said they shared the contents of the can and this was because of the sharing message. Of those that did not share the can, 50% said they often left part of the contents of the can in the fridge overnight and consumed the rest the next day.
The producer also provided information on a test of four cans by its technical consultant which it believed confirmed that there was no appreciable product deterioration when the container was stored in a fridge and then opened for consumption either the next morning or the next evening, there being less than a 10% fall in CO2 content over 24 hours.
The producer went on to say that the complainant had misinterpreted the Government ‘guidelines’ as ‘limits’, and nonetheless, the guidance was that consumers should not ‘regularly’ exceed the guidelines. In its view the guidance was to discourage sustained daily consumption and recognised that consumption may fluctuate from day to day with no harmful effect. If the Panel was to decide that a non-resealable container, typically used by one person, encouraged immoderate consumption then that decision should surely apply to wine bottles with corks, 660ml and 500ml beer bottles.
The Panel’s assessment
The Panel noted that the product had been subject to a similar complaint in 2008 and on that occasion the Panel had not upheld the complaint under Code paragraph 3.2(f). The Panel, however, decided that in view of the length of time that had since elapsed, it should not necessarily be bound by that precedent. The Panel considered that it should be responsive to changes in the prevailing climate in society including the growing focus by local authorities on products that were believed to be disproportionately consumed by problem drinkers. The producer responded by saying that upholding the complaint would be a direct contradiction of the Panel’s ruling on the same product in 2008, and the producer believed that there was no evidence before the Panel that the product was disproportionately consumed by problem drinkers.
The Panel requested evidence from the producer to demonstrate that Kestrel Super Premium Lager had moved towards a premium brand as referenced in the producer’s original response, and the producer referred the Panel to information available on its website www.kestrelbeer.com. The producer was able to demonstrate that the front and back of the packaging had changed between 2008 and 2012 when, most notably, the ‘sharing can size’ message had been introduced to the can. The Panel then focused on the ‘Our Beers’ page on the website which depicted the entire range of Kestrel beers. The Panel noted that the brand feel of the other beers in the range looked and was remarkably different to Kestrel Super Premium Lager, and as a consequence that product stood out in comparison.
The Panel noted that the can featured the message ‘sharing can size’ prominently on its neck and a similar message was repeated on the product website. The Panel also acknowledged that this was the first time they had seen such a message feature so prominently on a can. They were surprised by this, thinking it likely that the custom was for the contents of one can to be consumed by one person in one session. The limited further information provided by the producer (in response to the Panel’s enquiries) concerning the producer’s database statistics did not demonstrate how the database was constructed, and the Panel noted that the number of consumers involved appeared to be relatively small. The Panel concluded that the database could not provide any clarity on the drinking behaviours of wider consumers likely to consume the product. Therefore, the Panel was not convinced that consumers more widely would be persuaded by the message and share the contents of the can, as had been suggested by the producer.
The Panel also noted the ‘share’ message only featured on the can of Super Premium despite most of the other cans in the range being the same size; the Panel questioned this. They decided that to differentiate Kestrel Super Premium from the others in this way could also be because the producer was conscious of the product’s strength, and therefore units and the message therefore acted as a warning to consumers. This would support the view that the combination of the size of the can and high strength of the product would encourage immoderate consumption.
The Panel wanted to understand whether there were strongly held cultural assumptions which influenced the way consumers would respond to drinks in cans. In a survey by YouGov of over 2000 adults, 80% of those surveyed believed that a 500ml 9% abv can was designed for the contents to be consumed by one person in one sitting. The data was similar for a 440ml 4% ABV can. The data also showed only 2% of people thought these cans were easy to reseal once opened. The Panel shared this view. Consumers would not share the contents of a can, or reseal it saving it for another drinking occasion, the contents would instead be consumed by one person in one drinking occasion.
The Panel noted that the producer had raised the issue of the impact of an unfavourable decision on other drinks containers. The Panel concluded this point was not relevant to the current complaint. The Panel also felt it was important to explain that the number of units in the container was being used as an indicator and was not the only factor on which a decision would be based: the units in the container were assessed in combination with other cues such as the packaging type (size and resealability) and the overall impression conveyed by the product, and in particular the strong cultural assumption that products packaged in a can were designed for consumption by one person in one sitting.
The Panel noted that one 500ml can of Kestrel Super Premium Lager contained 4.5 units; 0.5 units above the guidelines Government recommended men should not regularly exceed on a daily basis, and 1.5 units above the guidelines for women. One Panel member said they had downloaded the NHS ‘Change4life’ app and had worked through the ‘Drinks Checker’, which defined an average strength lager as 5% and a very strong lager as 8% abv. When the Panel member input one 9% beer in a 500ml can as a female consumer she received an amber warning saying she was at ‘increasing risk’ and she ‘needs to cut down for the good of (her) health’. This warning was received even on a one-off consumption of such a can, which would lend support to the fact that this was considered to be immoderate consumption. Furthermore, because of the container type (size, resealability and cultural assumptions) it was reasonable to expect that the contents would be consumed by one person in one session: this expectation was supported by the consumer research. The Panel also noted the can featured the text ‘sharing can size’, but was not convinced that consumers would be persuaded by the message to depart from the traditional pattern of consumption: by one person in one session. In light of these factors, the Panel concluded that the product packaging encouraged immoderate consumption and thereby found the product in breach of Code paragraph 3.2(f).
 Consumer polling figures are from YouGov Plc. Total sample size was 2,031 adults. Fieldwork was undertaken between 13th – 14th October 2014. The survey was carried out online. The figures have been weighted and are representative of all GB adults (aged 18+).
Action by company
The Portman Group issued a Retailer Alert Bulletin to ask licensees to not place orders for stocks of Carlsberg Special Brew 9% ABV in the existing 500ml can packaging, after 31 March 2015.