“Cartoon-style imagery, childish fonts, bright colouring, personalities that are particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children should not be featured”.
Member of the public
Under Code paragraph 3.2(h)
A drink, its packaging or promotion should not have a particular appeal to under-18s (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators)
Under Code paragraph 3.3:
A drink’s name, its packaging and any promotional material or activity should not cause serious or widespread offence.
The company’s submission
The company stated that it took all consumer complaints very seriously. The company stated that after carrying out internal due diligence on the product, it had concluded that the product potentially breached Code rule 3.2(h). The company explained that it had discontinued the product with immediate effect (18th May 2021). The company stated that in the future it would endeavour to carry out its own internal due diligence and work with the Portman Group’s Advisory Service, when necessary, prior to launching any new products on the market.
The Panel’s assessment
Code Rule 3.2(h)
The Panel noted that the company had decided to withdraw the Original Nuttah packaging with immediate effect, because the company believed it potentially breached Code rule 3.2(h) and welcomed its decision to do so.
The Panel nonetheless considered whether the packaging was in breach of Code rule 3.2(h). The Panel considered the artwork on the front and back of the can. The Panel noted that the can used a pastel colour palette with a yellow base and a pink paint splodge behind the name ‘Original Nuttah’. The Panel considered that pastel colours were not necessarily problematic under the Code in isolation but the softer nature of the colours that could be associated with some childhood themes needed to be considered carefully alongside other factors on the product packaging.
The Panel observed that the front of the can featured illustrations of acorn or nuts, with cartoon eyes and mouths that appeared to be ‘flying’. Some of the nut characters had one eye larger than the other, or one eye crossed out, or tongues poking out. The Panel considered that the acorns had been stylised so that they appeared as ‘cheeky’ cartoon illustrations which were likely to have an appeal to under-18s.
The Panel carefully considered the use of the bear on the packaging. The Panel noted that the can featured the company’s corporate logo, a drawing of a stuffed bear, next to the product description on the front of the can. The Panel considered the two previous precedents where it had had discussed the bear logo as part of a complaint consideration: namely the Cwtch (2017) and Cwtch (2019) decisions. The Panel noted that on both occasions Cwtch was found to be in breach of the Code and that the bear logo had been a contributary factor in creating a particular appeal to under-18s when considered alongside the design of a bubble font and bright primary colours.
The Panel acknowledged that the bear was the producer’s corporate logo and considered that it did not necessarily breach the Code, in itself, but that it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance.
The Panel stated that, as always, it was imperative to consider the overall impression of the product and that the impact of the bear logo depended on its size and context, including the presence of other design elements that may have a particular appeal to under-18s and/or a design that focused attention on the bear.
The Panel carefully considered whether the bear logo was an element creating particular appeal to under-18s in the context of the Original Nuttah can. The Panel noted that that, due to the colour palette used, the bear was fairly prominent on the front of the can. The Panel considered that, when taken in combination, the pastel colour palette, cartoon acorn/nut illustrations and fairly prominent bear logo were likely to have a particular appeal to under-18s and accordingly upheld the complaint under Code rule 3.2(h).
Code Rule 3.3
The Panel considered whether the packaging caused serious or widespread offence based on the product name. The Panel considered the need to distinguish whether the overall impression conveyed was distasteful or whether it was likely to cause serious or widespread offence and observed the need to strike a balance between phrases that may cause some annoyance compared to those which could be considered seriously offensive. The Panel considered that ‘nutter’ was a derogatory term referring to those who suffered from mental illness. The Panel noted that ‘Original Nuttah’ was the title of a song but considered that the average consumer was unlikely to make a connection with the song and was more likely to interpret the product name as a reference to ‘nutter’, particularly when portrayed alongside cartoon acorns/nuts that were exhibiting frenzied behaviour. The Panel referred to the guidance note for the rule and noted that the rule prohibited marketing that was discriminatory and prevented derogatory and demeaning marketing that was seriously offensive.
The Panel considered that the name of the product was derogatory and demeaning and was likely to cause serious offence to some consumers. Accordingly, the Panel upheld the complaint under Code rule 3.3.
Action by Company:
Product has been discontinued by the company.