Producer:
Liquor Zaar
Complainant:
Zenith Global Commercial Ltd (as part of the independent proactive audit of the Naming and Packaging of Alcoholic Drinks Code, Sixth Edition Amended)
Complaint:
“Overt emphasis given to the higher alcoholic strength (4.4 units). “”Strong”” appears on the can multiple times, as does “”Imported”” and “”8.5%””, alongside the cartoon image of a man flexing his ‘strong’ muscles”.
Decision:
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.
UPHELD
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.
UPHELD
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, can enhance mental or physical capabilities, or change mood or behaviour.
NOT UPHELD
The company’s submission
The company did not submit a response to the complaint.
The Panel’s assessment
The Panel expressed its disappointment that the producer had not responded to any contact made by the Code Secretariat to discuss the complaint.
3.2(a)
The Panel discussed whether the packaging of O.J Premium Strong Beer placed undue emphasis on the drink’s higher alcoholic strength, or intoxicating effect. The Panel noted that the alcoholic strength by volume (ABV) of the drink was 8.5% which was higher than average for the category. Therefore, the Panel considered that it was important that the drink’s strength was communicated on its packaging in a factual and neutral way so that consumers could make an informed decision about consumption given the higher alcoholic strength of the beer. The Panel discussed the balance that needed to be achieved between factually communicating a drink’s higher alcoholic strength while not placing undue emphasis on its higher strength or intoxicating effect.
With that in mind, the Panel assessed the packaging to consider how the strength of the drink was presented. The Panel noted several strength cues on the label, including the word ‘strong’ which appeared in large, bold, white text several times on the can. The Panel considered that the text stood out prominently against the rest of the minimalistic, predominantly black and grey label. Alongside this, the drink’s ABV was presented as ‘8.5% alc vol’ several times on the front, back and side of the can in a bold white font. In several places on the label, the presentation of ‘8’ was in a notably larger font than the surrounding text and ‘strong’ had been positioned next to it. While the Panel acknowledged that ‘O.J’ was the largest font on the can, the size used for the ‘8’ made it a dominant feature on the label and its positioning next to ‘strong’ heavily emphasised the beer’s strength. This was reinforced by the number of times these elements were repeated around the label which the Panel considered went beyond factual communication of the drink’s strength. Instead, the Panel considered that the size, repetition and prominence of the product’s strength, and repeated pairing with the word ‘strong’, directly used the drink’s higher alcoholic strength as a marketing feature designed to appeal to consumers on this basis.
The Panel then considered the wider packaging to determine how these elements contributed to the overall impression conveyed by the packaging in its entirety. The Panel noted that the label included a cartoon-style image of a man, who had an athletic build and large muscular arms. The Panel noted that the arms of the man were disproportionately large compared to the rest of his body and were noticeably wider than the man’s waist for contrast. The Panel noted that the character was presented as flexing one of his arms in order to draw attention to his bulged bicep. The Panel considered that the depiction of the man was clearly intended to represent a person
who was strong and powerful. The Panel considered that in the context of the wider packaging, the image of the man was a further cue that the drink was being marketed on its strength and reinforced the perception that the beer was particularly strong.
Taking the above points into account, the Panel considered that the combination of these elements meant that undue emphasis had been placed on the higher alcoholic strength of the beer to the point where it had been used as a marketing technique to appeal to consumers based on strength and went beyond factual communication. Therefore, the Panel considered that the combination of multiple strength cues, including disproportionately large fonts and repeated overt presentation of the drink’s ABV, alongside imagery representing physical strength, placed undue emphasis on the drink’s higher alcoholic strength. Accordingly, the complaint was upheld under Code rule 3.2(a).
The Panel considered that some consumers would be particularly vulnerable to such marketing where the higher alcoholic strength of a drink was presented as a virtue and marketed as the primary reason to purchase the drink. The Panel was mindful that clause 1.1 of the Code of Practice explicitly stipulated that marketing should not particularly appeal to those who are vulnerable and expressed significant concern that the product had not been marketed in a socially responsible manner.
During research of the case, the Chair also noted that the company’s accompanying marketing on social media platforms marketed on the basis that the product’s higher alcoholic strength was a virtue, a challenge and a primary reason to purchase the product. Therefore, the Chair also requested that the Code Secretariat refer the product’s online marketing to the Advertising Standards Authority for investigation.
3.2(f)
The Panel considered whether the drink encouraged irresponsible or immoderate consumption as raised by the complainant. The Panel discussed accompanying guidance to Code rule 3.2(f) which stated that a single serve non-resealable container should not contain more than four units of alcohol unless the packaging incorporated mitigating factors so as not to indirectly encourage immoderate consumption. The Panel discussed YouGov polling commissioned in 20141 which showed that the large majority of adults polled believed that a 500ml can of beer was designed for the contents to be consumed by one person in one sitting. The Panel noted that this did not inherently mean that a 500ml can which contained more than four units of alcohol would automatically breach Code rule 3.2(f) and that consideration would be given to mitigating factors included on pack. The Panel noted that such mitigating factors should be commensurate with the number of units above four in the single-serve container and could feature responsible drinking messaging, a ‘share’ message or a per-serve recommendation.
The Panel noted that O.J Premium Strong Beer contained 4.4 units of alcohol in a non-resealable single serve 500ml can. The Panel assessed the packaging and noted that it included some best practice elements to communicate alcohol health-related information such as a pregnancy warning logo and the product’s unit content information. However, for a higher than average strength product, the Panel noted that there was no inclusion of the Chief Medical Officer’s Low Risk Drinking guidelines, nor was there was any information to communicate that the drink should be shared between multiple people or consumed over more than one sitting. Therefore, the Panel considered that as the product contained 4.4 units of alcohol in a single serve, non-resealable container, mitigating factors such as a ‘share’ message or per serve information should have been included on the packaging. In the absence of this information, the Panel considered that the packaging indirectly encouraged immoderate consumption. Accordingly, the complaint was upheld under Code rule 3.2(f).
3.2(j)
During discussion, the Panel raised Code rule 3.2(j) to determine whether the drink’s packaging suggested that consumption of the drink could enhance physical capabilities. The Panel considered the inclusion of an image of a muscular and athletic person on the packaging and whether this suggested that by consuming the beer, a person may experience enhanced physical capabilities. The Panel discussed the assessment of the imagery in the context of Code rule 3.2(a) and noted it had been a contributing factor in conveying the impression that the drink was particularly strong. The Panel noted that the man was athletically built with large muscular biceps which suggested that he was a strong person in good physical condition. However, the Panel considered that this alone did not suggest that consumption of the drink could help a consumer achieve a similar physique. With that in mind, the Panel considered the rest of the label and noted that there was nothing else which implied that consumption of the drink could impart strength to a consumer or help them achieve a greater level of fitness. The Panel considered that while the person depicted was athletic and strong, there was nothing on the packaging that sufficiently linked the image with consumption of the drink. On this basis, the Panel concluded that the packaging did not suggest the drink could enhance physical capabilities. Accordingly, the complaint was not upheld under Code rule 3.2(j).
Action by Company:
The producer did not engage with the complaints process and a Retailer Alert Bulletin was issued.
1 YouGov Polling Results for Drink Sizes 2014; commissioned by the Portman Group