Company: Diageo Great Britain Limited
Final Decision: 24 July 2014
Considered under the 4th Edition of the Code.
The concerns for this product are that it breaches the codes at 3.2(f) and 3.2(h).
3.2(f): This product is designed to drive ‘impulse’ sales in convenience stores. This design is therefore specifically to entice people to purchasing and consuming alcohol that they had not set out with an intention to purchase and is likely to cause those people seduced into buying it to drink irresponsibly or immoderately.
3.2(h): This product is designed to be placed on counter tops and is suggested as a more profitable alternative to other impulse purchases such as confectionary that are frequently placed in these areas. The colourful, fun display placed in this area will ensure it is seen by, and be attractive to under 18’s.
Northampton Borough Licensing Team
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.
Under Code paragraph 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.
The company’s submission
The company said it understood the underlying theme of the complaint to be taking issue with the location of the unit within the store, and its understanding was that location of alcohol within a retail premises was not covered by the Portman Group Code. It went on to explain that there were no restrictions on the positioning of alcohol in the off-trade in England and Wales and that although the unit was marketed for placement on a retailer’s counter-top, the positioning of the product within a store was ultimately at the discretion of the retailer.
The company explained that ‘impulse’ purchases were a widely used method of driving sales in the retail sector. The impulse purchase concept was not in and of itself problematic or prohibited and they felt that there should be a key distinction between point of purchase and method of consumption. The company believed the complainant to be making a tenuous link between a consumer’s decision-making process at the counter to that consumer then engaging in irresponsible or immoderate consumption.
The company went on to say that the unit clearly stated that each 20cl bottle contained eight drinks in each bottle and, if anything, this encouraged responsible consumption by informing the consumer of the number of standard 25ml measures in each bottle. The ‘mix it up tonight’ message was a reference to using the alcohol to make mixed drinks, images of which also featured on the unit. The company then referred to new marketing material which focused on the image of one bottle with eight glasses of mixed drinks on a re-designed counter-top unit, which they believed communicated the share message with even greater clarity than the original unit.
The company then went on to address the second issue raised by the complainant: that the colour and design of the unit, and its placement on the counter (according to the complainant an area usually frequented by other impulse purchases like confectionery) led the product to have a particular appeal to under-18s. In its response the company referred the Portman Group Advisory Service’s guidance to paragraph 3.2(h), which sets out how to assess whether a product/promotion might have a particular appeal to under-18s. The company asserted that the product did not satisfy any of the criteria which would suggest it might have a particular appeal: childish font, cartoon-style or other imagery popular with young children.
The Panel’s assessment
The Panel first considered whether any aspect of the unit design, and not its location within the store, led it to have a particular appeal to under-18s. The Panel noted that the unit was colourful; however, it went on to note that the colour alone was not enough to lead it to have a particular appeal to under-18s and based on the facts that there was nothing else in the product design which led it to have a particular appeal to under-18s, concluded that the unit did not breach Code paragraph 3.2(h).
The Panel then went on to consider whether the unit or its design encouraged immoderate and/or irresponsible consumption. The Panel noted that the unit stated ‘one bottle eight drinks’ and that each of the bottles was price-marked. Despite this, the Panel was concerned that the dominant message on the unit was ‘mix it up tonight’ and that this message was ambiguous. In the Panel’s view this was not obviously about suggesting the consumer should make mixed drinks with one of the bottles, but equally, if not more, about suggesting that the consumer should have several of the bottles in one sitting, as implied by the word ‘tonight’. The Panel noted that the same message did not appear on the re-designed unit. The Panel accepted the company’s account that it had re-designed the unit prior to the complaint for unrelated reasons, and that this did not amount to a concession that the original unit was in breach of the Code. The Panel welcomed the new marketing material and stressed that the decision was based on the material that was subject to the complaint. It concluded that because the phrase ‘mix it up tonight’ could be seen as an encouragement of immoderate consumption the original unit did breach Code paragraph 3.2(f).
Action by company
No action required: the company had redesigned the counter-top unit prior to receiving the complaint and the re-designed unit does not feature the ‘mix it up tonight’ message.