Final Decision: 15 March 2019
“The attached gin liqueur beverages are on sale in John Lewis at Home (Newbury). The images appeal to children and they are on a low display stand – i.e. at child level. I believe they are in breach of the code”.
Member of the public
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material should not in any direct or indirect way have a particular appeal to under-18s.
Under Code paragraph 3.2(j)
A drink, its packaging and any promotional material should not in any direct or indirect way suggest that the product has therapeutic qualities, or can enhance mental or physical capabilities.
The company’s submission
The company stated that Pixie Tears Gin was part of its premium spirits range with a 40% alcoholic strength by volume (abv) and a high-end price point of £40 RRP. The company stated that although fantastical in design, the product was a high-quality juniper flavoured gin with 10 botanicals.
The company addressed the complainant’s assertion that the product had a particular appeal to under-18s. The company explained that the product design employed a simple black colour print with an art-deco feel and did not use a colour scheme that could be misconstrued as appealing to under-18s. Further to this, the company asserted that pixies were long established in folklore and mythology and could not be said to have a particular appeal to under-18s. The company explained that Pixie Tears had a green opalescent appearance and contained candarin which gave the product a shimmering effect when shaken. The company stated that the product was a 40% ABV Elderflower and Cucumber Gin and did not believe that these flavours or ABV would appeal to anyone under the age of 18.
The company asserted that there was no possibility that the product could be confused with a soft drink or non-alcoholic product. The company stated that the product clearly communicated its alcoholic nature with absolute clarity by clearly incorporating various alcoholic cues on the front and back label; according to the company:
- the word ‘Gin’ appeared in bold black font on the front label;
- the figure 40% vol appeared in black font on the front label;
- the back label included relevant regulatory information such as the UK pregnancy warning, unit content of the container and the old UK Chief Medical Officers’ (CMO) daily unit guidelines.
In response to the complainant’s assertion that the product was inappropriately placed in John Lewis, the company explained that it could not control how its products were merchandised and therefore did not believe that this element of the complaint was subject to the Code. The company expressed disappointment that the complainant’s concerns seemed to be primarily aimed at John Lewis’ placement of the product and less about the product packaging. Despite this, the company explained that it had taken steps to encourage responsible retailing and had created a retailer advisory pack to help explain how the product should be positioned within retail environments.
The Panel’s assessment
The Panel considered the overall impression conveyed by the product packaging encompassing the product name, imagery and packaging. The Panel noted that the product artwork was sophisticated and acknowledged the producer’s view that the pixie line drawing had a mature art-deco feel to it. The Panel also noted that the product communicated its alcoholic nature with absolute clarity by virtue of the clear display of the word ‘Gin’ in bold black font on the front label along with the ABV. In addition to this, the back label contained the unit content of the product, pregnancy logo, the UK CMO’s daily unit guidelines and a tailored responsible drinking message. The Panel also noted that the bottle shape was fairly traditional in design for a spirit and had a cork stopper, which helped contribute towards the product’s positive alcoholic cues.
The Panel first considered the product against Code Rule 3.2(h) and whether it had a particular appeal to under-18s. The Panel discussed the impact the cumulative elements of a product’s design could have on a product’s appeal. It noted that the line drawing of the pixie appeared in the context of a fairly simplistic label design and adult flavour pairing (elderflower and cucumber). The Panel had some concerns about alcoholic products that used fairy-tale characters as part of a brand narrative but agreed that compliance would always be determined by the overall impression conveyed by the product packaging. In this instance, the Panel considered that the mature art-deco line drawing of the pixie was unlikely to hold a particular appeal to under-18s but were keen to stress that any appearance of a fairy-tale character could hold potential appeal to children depending on the imagery used. Whilst the Panel considered the use of a pixie was close to the line of what was acceptable, in this instance they did not consider it to be problematic because it was not akin to a more cartoon-style image of a fairy, or a Flower-Fairy, which could have particular appeal to young children.
Finally, the Panel considered the text on the back label, which included the sentence ‘swirl to release their mischievous powers’. The Panel discussed the meaning behind this in the context of the overall impression conveyed by the product and concluded that the line was being used in reference to the shimmer of the liquid as opposed to suggesting that the product had ‘mischievous powers’ and accordingly did not uphold the product under Code Rule 3.2(j).
The Panel discussed the company’s response in relation to the price and placement of the product but noted that these elements were not in the remit of the Code. However, the Panel did welcome the news that the company had created a retailer advisory pack to assist retailers in the responsible merchandising of their products.
Action by the Company
No further action required.