Final Decision: 3 September 2020
Considered under the 6th Edition of the Code.
“I wish to complain about Orchard Thieves Cider, where the can shows a cartoon animal which would be attractive to children & it also states “Stolen from Herefordshire”, which is a clear admission of illegal activity.”
Member of the public
Under Code paragraph 3.2(h):
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 3.3:
3.3 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.
The company’s submission:
The company stated Orchard Thieves cans were only available until the second quarter of 2019. The company highlighted they were removed from the off trade and only available with EasyJet until July 2020. The company stated it was important to note the cans were not available in the UK and there were no plans to reintroduce them, they were only available in draft form on the on-trade with a new refreshed design from July 2020.
The company explained the name was inspired by foxes eating apples destined for cider in their Herefordshire orchard. The company stated the fictional brand story stated foxes wanted the best apples, but they wanted them for the cider. The company did not believe the image or strapline breached the Code.
The company stated the image of the fox did not appeal to under 18s because:
- The branding was monotone – cream and black which did not appeal to under-18s
- The fox was not in a ‘cartoon’ style, but was a stencilled silhouette accurately depicting the outline of a fox. There was no facial expressions or characterisation in the imagery which reduced the risk of appeal to under-18s
- The fox was not a famous character known to under-18s
- It was clearly marked as cider with the ABV clearly labelled.
The company referenced the Portman Group’s Guidance Notes for Code Rule 3.2 (h). The examples which would be deemed a breach included cartoon characterisation, ‘young’ colours like pink or blue. The company stated none of these applied to Orchard Thieves.
The company stated the phrase ‘Stolen from Herefordshire’ would no longer be used from August 2020. The company explained that to cause serious or widespread offence, it would need to believably be offended the majority of people. The company did not believe this was the case. The company stated it was clearly a make-believe notion a fox could intentionally steal apple, and even more so it was encouraging people to steal apples.
The company highlighted that no group was being targeted by the phrase, and did not believe the majority of people would interpret it as offensive.
The company raised 3.2(b), and stated it believed the product could be considered under the rule. The company stated it wished to respond to this rule so the Panel could make an informed judgment.
The company stated it was clear the language related solely to foxes, and this was further implied by the image of the fox on packaging and marketing materials. The company also stated the majority of consumers would not believe the line was a serious intentions for them to steal pales, or for their customers to be influenced to steal apples themselves.
The company explained it was a fabricated story which emphasised the importance of the apples from Herefordshire for cider maker. The company also highlighted it was not illegal for a fox to take apples from an orchard. The company stated the phrase ‘Stolen from Herefordshire’ relates directly to the name of the cider, is directly related to the fictional fox thieves, and is incorporated on the same pack as the brand name making the association clearly visible.
The company concluded it did not believe the product breached the Code. The company stated the muted colours, silhouetted imagery and illogical notion of foxes stealing apples would not appeal to under18s or be taken seriously as endorsing or promoting illegal activity. The company emphasised the can design and strapline would not be used further.
The Panel’s assessment
The Panel noted the product had recently been withdrawn from the UK market but had been available from UK retailers when the complaint was received; they considered that the complaint was therefore covered by the Code. The Panel considered the product under rules 3.2(h) and 3.3, cited by the member of the public who originally complained about the product, and rule 3.2(b), raised by the Panel.
The Panel noted that the fox was depicted as a monotone silhouette with no facial expression or eyes. They considered that the image of the fox did not resemble cartoon imagery of a type that had particular appeal to children and that the overall presentation of the product had a mature feel. They considered that the product was acceptable under rule 3.2(h).
The Panel discussed the text on the side of the can that said “Stealthy by nature, the fox has been known to sneak into our orchards late at night, hunting the most delicious apples from our Herefordshire homeland. Now we’re stepping in, using our wily friends’ favourite fruit to craft a tasty apple cider that is crisp & refreshing, full of flavour to the last sip”. They considered that the packaging communicated a brand narrative that was clearly a fictional story, and successfully linked the fox to the apples used in the product. They considered that the references to thieves and stealing were clearly attributed to the fox and referred to a type of stealing that was not a crime.
The Panel discussed the principles they had established in previous decisions and noted that they had in the past upheld complaints about illustrations of animals on the grounds that they suggested an association with illegal behaviour. They clarified that depictions of anthropomorphised animals engaging in human-like illegal or antisocial behaviour were likely to breach the Code. In this case, however, they considered that neither the image nor the text presented the fox as anthropomorphic. They concluded that the packaging did not condone or encourage human criminality and that the product did not breach rule 3.2(b).
The Panel also noted the member of the public who originally complained about the product had cited rule 3.3 but had not provided further information about why they believed the packaging caused serious or widespread offence. The Panel could not see any aspect of the packaging that was likely to cause serious or widespread offence and considered that the product did not breach rule 3.3.
Action by Company: