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Company: United Dutch Breweries
Breach: Yes
Final Decision: 30 January 2020

Considered under the 6th Edition of the Code.

Complaint summary

“The product puts undue emphasis on its alcoholic strength by including the word ‘extra’ next to strong. At ABV 8.5% the lager is much stronger than the average strength of similar beverages, but the way this is communicated goes beyond giving factual information.”

Complainant

Zenith Global (as part of the independent audit of the Sixth Edition of the Code 2019)

Decision

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

UPHELD

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

The company’s submission

The company expressed surprise that the complaint was under investigation, because the product had been considered under Code Rule 3.2(a) in 2016. The company said the Panel had previously concluded that “extra strong” was factual and quoted the Panel’s decision:

“The Panel went on to consider whether the product should be reviewed under any other aspect of the Code. The Panel raised concerns with regard to rule 3.2(a), that a product’s packaging should not in any direct or indirect way give the higher alcoholic strength undue emphasis. The Panel discussed the size and prominence of the ‘8.5’ (indicating the strength of the product) displayed on the front of the product alongside the words ‘imported’ and ‘extra strong’. The Panel said that the ‘8.5’ was larger and bolder than some of the other wording on the can and that it was quite prominent. However, the Panel agreed that, particularly taking into account the fact that the product comes in a number of different strengths, that it was useful for the consumer to know that the product was 8.5% ABV. The Panel also agreed that the words ‘imported’ and ‘extra strong’ were factual and not unduly emphasised when compared with other wording on the product. The Panel did not think that the product packaging placed undue emphasis on the alcoholic strength of the drink. Accordingly, the Panel did not uphold the product under Code paragraph 3.2(a).”

The company said the Code was exactly the same, the claim was the same, and the Panel had already given its opinion on the claim.

The company referred to the Panel’s decisions on Tennent’s Super Strong and SKOL Super Strong; they noted both those products mentioned ‘super’ in a very prominent way and were allowed by the Panel. The company argued that, according to the Cambridge Dictionary, ‘super’ meant “excellent”, which they said was a qualitative statement and therefore less factual. The company said that, according to the Cambridge Dictionary, ‘extra’ meant ‘added to what is normal’, which was a factual statement. The company also argued that ‘extra’ was not as prominent on the packaging as ‘super’ had been on those products.

The company argued that, given the Tennent’s Super Strong and SKOL Super Strong, the less prominent and more factual word ‘extra’ should be allowed. In response to the Panel’s provisional decision finding the product in breach of the Code, the company said the Panel had rejected the complainant’s original objection to the world ‘extra’ but had nonetheless upheld the complaint for a different reason. The company asked the Panel to reconsider their decision because it was not related to the basis of complaint.

The Panel’s assessment

The Panel noted that it had discussed this product in substantially similar packaging in 2016. The Panel was satisfied that it could consider the product again, because a new edition of the Code had come into force, accompanied by new guidance.

The Panel first considered whether the word “extra” gave undue emphasis to the higher alcoholic strength of the product. The Panel noted the phrase was in black text on a can that was predominantly black and considered that the phrase was unobtrusive within the overall design. They also noted that the Oranjeboom range included lagers of different strengths, including a lower strength product. The Panel considered that “extra strong” was an acceptable name to differentiate the product variant from others in the range and considered that, within the overall design, the phrase was not given undue emphasis.

The Panel confirmed that it was not bound to restrict its consideration to the narrow terms of complaint but might consider the packaging under any section of the Code that it considered relevant, as set out in paragraph 5.20 of the Code. The Panel also noted that it could consider the Code rule cited by the complainant more broadly and was not restricted to making a decision on the grounds given by the complainant.

The Panel therefore considered the figure “8.5”. They noted it was printed in large, white numbers and considered that this was a prominent feature of the design. They noted the packaging did not include information about the alcohol unit content or a message indicating that the can was intended for sharing. The Panel considered that the overriding impression was that the product was “strong stuff”, although they acknowledged that this effect might have been inadvertent. The Panel was concerned that the presentation of “8.5” emphasised the higher strength of the product, relative to other products in the lager category, 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 the “8.5” element of the design went beyond giving factual information and gave the higher alcoholic strength undue emphasis. The Panel therefore upheld the complaint under rule 3.2(a).

The Panel also considered whether the product encouraged irresponsible or immoderate consumption. 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 calculated that the product contained 4.25 units of alcohol. They noted that the can was not resealable and that it did not prompt consumers to share the contents, and considered that the contents would be typically consumed by one person in one sitting, as had been confirmed by recent research showing that consumers regarded this type of container as a single-serve product.. The Panel considered that single-serve containers containing more than four units of alcohol were at risk of encouraging immoderate consumption but that, when the unit content was close to four units, they should consider the packaging carefully before reaching a decision. They considered factors that would reduce the risk of encouraging immoderate consumption, such as a recommendation to share the contents, per-serve messaging or information about responsible drinking, but found that the packaging did not include these messages. After considering all the features of this packaging, the Panel concluded that it encouraged immoderate consumption. The complaint was upheld under rule 3.2(f).

Action by Company

The company agreed to remove the product from the market.