Producer one:
Brew York
Producer two:
Gweilo Beer
Complainant:
Zenith Global Commercial Ltd (as part of the independent proactive audit of the Naming and Packaging of Alcoholic Drinks Code, Sixth Edition Amended)
Complaint:
“While the 4.5% ABV appears (and only in one place on the can), this is too small and does not stand out sufficiently on the can’s rainbow-covered pattern, nor does the word “beer” appear, just “sour” which does not provide absolute clarity over alcoholic nature. The can’s rainbow-covered pattern is brightly coloured and would immediately appeal to under 18s. While “Best enjoyed with fruity, sour lace sweets from your childhood” does lightly insinuate adult consumption, the packaging’s bright colour and soft drink 330ml can serving size could still present a particular appeal to teens and pre-teens”.
Decision:
Under Code paragraph 3.1 The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.
UPHELD
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. A producer must not allow the placement of brand names, logos or trademarks on merchandise which has a particular appeal to under-18s or is intended for use primarily by under-18s.
UPHELD
The company’s submission
As a jointly produced product, Gweilo responded to the complaint on behalf of both Gweilo and Brew York. The company explained that, as an international business, it had developed a product label and advertising compliance policy. This policy involved new packaging being reviewed against a compliance checklist by its in-house legal counsel, head of brand and sales director for the relevant market, ensuring three senior staff members signed off on its compliance. When designing the Rainbow Sherbet packaging, the company conducted a compliance review across multiple markets, including the UK, and believed at the time that the product adhered to all UK regulations and codes. Following a complaint, the company revisited the label’s compliance and concluded that it did not breach the Code.
The company outlined specific points to support its position. The company explained that the front of the can design prominently displayed the alcoholic strength by volume (ABV) as one of four key elements framing the name and logo. This design ensured the ABV was clearly visible on the front, making it evident that the product was alcoholic. The company stated that Gweilo exclusively produced beer, sold in alcohol sections of stores and was solely associated with alcoholic products, making it unlikely for consumers to perceive their product as non-alcoholic. The company stated that the label included symbols indicating “do not drive while drinking” and “do not drink when pregnant”, respectively signalling the product was alcoholic and intended for adult consumption. The label also included the alcoholic unit symbol, indicating that each can contains 2.0 UK units of alcohol, again clearly identifying it as an alcoholic product. The company highlighted that the label included the text “A collaboration brew between Brew York and Gweilo Beer,” using the words “brew” twice and “beer” which made it clear the product was alcoholic. The company also explained that the definition of “Gweilo” on the side of the can included the phrase “Exceptional craft beer born in Hong Kong, brewed with talent” further emphasising the product was alcoholic through the terms “craft beer” and “brewed.” Finally, the product included text highlighting its tasting notes which referenced enjoying the beer with childhood sweets and included the tagline “nostalgically redefining” which further enforced that the product was intended for adult consumption.
The company stated that many beers on sale lacked clear identifiers of being alcoholic, whereas its product had seven distinct elements indicating it was alcoholic and intended for adults. The company concluded that these elements collectively ensured there was no doubt about the product’s alcoholic nature and respectfully suggested that no changes to the packaging were necessary as there was no breach of the Code.
The Panel’s assessment
3.1
The Panel considered whether the packaging communicated the drink’s alcoholic nature with absolute clarity as raised by the complainant. The Panel first discussed a similar precedent case, ‘Yonder Pink Lemonade’, which was found in breach of Code rule 3.1. In that case, the Panel determined that the descriptor ‘sour’ contributed to an overall sense that the product could cause consumer confusion because it was not a widely recognised descriptor to communicate that the drink was a beer. In the context of a drink that was named after a popular soft drink, the Panel stated that packaging which included flavours or imagery that were not typically associated with alcohol would need to work harder to avoid consumer confusion as to the drink’s alcoholic nature.
The Panel then assessed the packaging which had overlapping and underlapping rainbows placed in all different directions covering the majority of the can. The Panel discussed the front label and noted that there were some positive alcoholic cues such as ‘gweilobeer.co.uk’ and the drink’s alcoholic strength by volume, presented as ‘4.5%’. The Panel considered that these cues were presented in a small white font which did not particularly stand out against the busy rainbow background making it difficult to read. In contrast, ‘Rainbow Sherbet Sour’ and ‘gwei.lo’, followed by two Chinese characters, were much more prominent on the label in a larger white font. The Panel noted that ‘Rainbow Sherbet’ was a popular sweet item and therefore was not a flavour that was typically associated with alcohol or a beer. Alongside this, the Panel discussed that ‘sour’ was not a widely recognised reference to alcohol, without a clarifying descriptor, such as ‘beer’. Furthermore, the Panel considered that ‘gwei.lo’ and the Chinese characters were not likely to be understood by the average consumer as a reference to alcohol or beer either. The Panel considered that the combination of these elements on the front of the can therefore did have the capacity to cause consumer confusion as to the alcoholic nature of the drink depending on the impression conveyed by the rest of the label.
With that in mind, the Panel then considered the rest of the packaging alongside the producer’s response and noted that there were some positive alcohol cues, including references to craft beer, a pregnancy warning, drink driving warning logo and unit content information. However, the Panel reiterated that these elements, which were in a smaller white font, did not particularly stand out against the busy rainbow design. Furthermore, much of the text on the back label referred to the sweet fruit flavours and to fruit sour lace sweets which reinforced the perception the drink could be mistaken as a soft drink. This was compounded by the wider label that was covered in rainbows that had a strong resemblance to rainbow sour lace sweets.
Taking the above into account, the Panel concluded that the overwhelming number of negative cues which formed the majority of the product design meant that the label had the capacity to mislead a consumer as to the drink’s alcoholic nature in the Panel’s view. After careful consideration of the overall impression conveyed by the drink’s packaging in its entirety, the Panel considered that the combination of the dominant sweet theme, the drink’s name, the lack of a widely recognised beer descriptor, the busy rainbow background and comparatively small positive alcohol cues meant that the drink’s alcoholic nature was not communicated with absolute clarity. Accordingly, the complaint was upheld under Code rule 3.1.
3.2(h)
The Panel considered whether the packaging could have a particular appeal to under-18s as raised by the complainant. The Panel discussed that the packaging was clearly intended to invoke a sense of nostalgia for adult consumers which was evidenced by the text inclusion of ‘nostalgically redefining’ and ‘Best enjoyed with fruit, sour lace sweets from your childhood!’ on the label. The Panel discussed that appealing to an adult’s sense of nostalgia for their own childhood was not inherently problematic under the Code but emphasised that producers needed to take care that the packaging did not inadvertently have a particular appeal to contemporary children.
The Panel discussed rainbow sherbet sour laces and noted that they were sweets that were still available and were typically marketed towards children in the sweet aisle of supermarkets. The Panel considered that while adults might enjoy the sweets as a nostalgic reminder of childhood, rainbow sour laces would have a strong appeal to under-18s who would readily recognise the sweet as an item often aimed at their age group. The Panel discussed a similar precedent case, ‘Taurus Cider Strawberry Laces’, which was also named and flavoured after a contemporary lace sweet. The Panel considered that in that case, it was found that a drink’s flavour alone did not necessarily have a particular appeal to under-18s but it could contribute to how a drink would resonate with children. The Panel stated that a drink which had the capacity to resonate with children based on its flavour would need to ensure that the wider label presented in a mature and adult-like manner to reduce the risk of the packaging having a particular appeal to under-18s. The Panel considered that in this case, because the flavour of the drink would have a strong appeal to under-18s, it was important to consider how the flavour would fit into the overall impression conveyed by the packaging in its entirety. The Panel discussed the use of bright rainbows on the packaging and acknowledged that a rainbow in and of itself did not necessarily create a particular appeal to under-18s as it is used as a symbol throughout many different communities, such as the LGBTQIA+ community or as a way of demonstrating support for the NHS. The Panel discussed the presentation of the rainbows and noted that they were not designed to appear solely as rainbows but that the size and shape of them were far more reminiscent of rainbow lace sweets and that this impression was accentuated by the flavour of the drink. The Panel noted that there were numerous rainbows over-lapping which further resembled the sweets which usually came as multiple strips in a pack together. Therefore, in this specific context, the Panel considered that the dominant theme of rainbow lace sweet imagery and accompanying sweet-flavoured language, reference to childhood and bright primary colours all combined to give an overall impression that the product had a particular appeal to under-18s. Accordingly, the complaint was upheld under Code rule 3.2(h).
Action by Company:
Working with the Advisory Service.