‘Branding based clearly on Prime, the hot new drink aimed towards children. Incredibly blatant, undeniable attempt to latch onto that appeal. Prime has been heavily pushed by social media influencers – implied by the link to Prime’s branding is that Primed also confers these popularity benefits…..As with the Primed… which besides all of its associated claims of improved awareness, awakeness and other benefits, is also brightly coloured and aimed at under 18s.’
Member of the public
Under Code paragraph 3.2(e)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that consumption of the drink can lead to social success or popularity
Under Code paragraph 3.2(f)
A drink, it’s 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 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 3.2(j)
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 did not submit a response to the complaint.
The Panel’s Assessment
Code Rule 3.2(h)
The Panel considered the product packaging carefully and noted that in the most part it employed the use of a blue background with the product name ‘Primed’ displayed in thick black font with a white outline. The Panel noted that the branding of ‘Primed’ was a facsimile of ‘Prime’, a well-known hydration drink, which had been created by popular social media personalities, Logan Paul and KSI. The Panel discussed the popular cultural phenomenon that had surrounded ‘Prime’ since it launched in the UK and noted that its popularity was primarily driven by those under-18, with whom it was seen as a highly sought after status symbol. The Panel noted that media coverage often portrayed parents and children queuing in long lines outside of shops to purchase the product as its supply had not met demand since its launch, contributing to its scarcity. The Panel considered that while the Prime Hydration version of the drink could be purchased by all age groups, it was particularly popular with school aged children and teenagers.
The Panel considered the packaging of Primed and noted that the label employed the same font, colour, flavour and style as ‘Prime’. The Panel discussed accompanying guidance to Code rule 3.2(h) and noted that producers were cautioned against using personalities that were particularly admired by under-18s, pictures of real or fictional people known to children or terminology popular with children as these could be problematic under the Code. While guidance did not explicitly reference branding which could have a particular appeal, the Panel considered that some branding could particularly resonate with under-18s in much the same way a celebrity or character could.
The Panel then discussed the company’s corporate bear logo and noted previous case precedents that reviewed its compliance under the Code (Cali Pale, Bump n’ Grind, Cherry Bomb, Clwb Tropica, Clwb Tropica Four Pack, Double 99, No Capes, Original Nuttah 2021). The Panel discussed that while the bear did not necessarily breach the Code in itself, it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance. In this instance, the Panel noted that it appeared on the front label in the context of a product which was particularly popular with under-18s.
After careful consideration, the Panel concluded that due to the inherent similarity with the non-alcoholic Prime Hydration drink, which was particularly popular with school aged children and teenagers, the packaging of Primed, which included the company’s bear logo on the front label, did have a particular appeal to under-18s. Accordingly, the Panel upheld the complaint under Code rule 3.2(h).
Code Rule 3.2(e)
In the context that Prime was seen as a status symbol amongst youth culture, the Panel discussed Code rule 3.2(e) to determine whether the packaging of Primed suggested that consumption of the drink could lead to social success or popularity, as raised by the complainant. The Panel discussed the marketing tactics that had framed the launch of the non-alcoholic Prime drink and noted that supply issues had increased demand and partly led to a popular cult following with many seeing the product as an aspirational item and status symbol. However, the Panel considered that this did not necessarily suggest that consumption of the alcoholic Primed drink could make a consumer popular. The Panel carefully assessed the packaging of Primed in its entirety and considered that the similar branding alone was not enough to indirectly suggest that consumption, as opposed to purchase, could aid a consumer socially.
During discussion, the Panel noted that text on the back of the packaging stated ‘We’re on a mission to bring you goods times with a hint of beer. We do this by creating brands that will capture your imagination and defy your senses’. After careful consideration, the Panel considered that the context of the line was clear, and purposely linked the referenced ‘good times’ to the brand’s imagination, rather than linking consumption of the product to social success or popularity.
The Panel noted that there was nothing else on the packaging of Primed which suggested that consumption of the drink could lead to social success or popularity. Accordingly, the complaint was not upheld under Code rule 3.2(e).
Code Rule 3.2(j)
The Panel then considered whether anything on the packaging of Primed, directly or indirectly, suggested the drink had a therapeutic quality as raised by the complainant. The Panel noted that the non-alcoholic version of Prime came in two versions: Prime Hydration and Prime Energy. The Panel noted that Prime Energy was packaged in a 355ml can format, as opposed to a plastic 500ml bottle for Prime Hydration. The Panel also noted that Prime Energy presented the ‘Prime’ typeface in bold white letters while Prime Hydration presented the typeface in bold black letters with a white outline, the design used on the alcoholic Primed drink. The Panel considered that Prime Hydration did not contain any stimulant ingredients, such as caffeine, and consisted of coconut water and electrolytes. The Panel noted that while Prime Hydration was not an energy drink, it was marketed as a performance enhancing drink.
The Panel discussed the similarities between the design of Primed and Prime Hydration. The Panel considered that because the branding, name and flavour of Primed intentionally mirrored Prime Hydration, the alcoholic version of Primed indirectly suggested that it could fulfil the same purpose of the original brand, and thus inferred the same therapeutic effect. The Panel considered that it was particularly irresponsible for an alcoholic drink, which had a dehydrating effect, to mimic branding for a product that was known for its hydrating effect.
While the Panel acknowledged that the packaging of Primed did not include any direct health claims, the product descriptor text on the company’s web page included the line ‘Our ‘Cos Jan’s Bad Enough Beers are all made with love and fun to help chase away the January blues..’. The Panel also noted that the product had been launched as part of a wider range in January, a month that in recent years had become linked to health goals and giving up certain products or types of food and drink. The Panel considered that the product’s marketing reinforced the perception that consumption of the drink could help change a consumer’s mood to chase away the January blues, and that the drink indirectly suggested that it had a therapeutic quality. Accordingly, the Panel upheld the complaint under Code rule 3.2(j).
Code Rule 3.2(f)
In light of the above, the Panel agreed that there was merit in discussing whether the drink’s packaging encouraged irresponsible consumption. The Panel assessed the packaging in its entirety and reiterated that it was socially irresponsible for an alcoholic drink to create an association with a non-alcoholic drink known for its hydrating and performance enhancing effect, particularly when alcohol had a dehydrating effect. After careful consideration of the Code rule 3.2(f) wording, and in the context of its decision under Code rule 3.2(j), the Panel considered that if a consumer believed that the product had a hydrating effect, or was performance enhancing, this could indirectly encourage a consumer to drink it to excess in order to gain the inferred health benefits of the product. The Panel considered that a consumer may then base their alcohol consumption on the purported health benefits of the product, as opposed to making an informed consumption choice based on the amount of alcohol in the product and this, the Panel concluded, could reasonably lead to irresponsible consumption as a consumer might consume more than they otherwise would have done. Accordingly, the Panel upheld the complaint under Code rule 3.2(f).
Action by Company:
Product has been discontinued.