“This drink looks as if it’s aimed at children. It should not be sold in such packaging or with the pearlised effect of the product. Very concerning. I actually thought it was little girls bubble bath”.
Portman Group acting in lieu of a referral from the Advertising Standards Authority
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 (in the case of sponsorship, those under 18 years of age should not comprise more than 25% of the participants, audience or spectators)
The company’s submission:
The company began by explaining that Zymurgorium as a brand, was well-known for its inventive drink flavours. The company stated that its creative experimentation with different flavour combinations was something its customer base expected from its product range.
The company explained that its packaging was equally as important to the brand as its inventive flavours. The company stated that each bottle of gin in its range was presented in a sophisticated glass bottle containing layered hexagons and a handcrafted dipped wax seal. The company explained that the artwork for each bottle was developed with professional artwork designers to create the look and feel of a sophisticated and intricate premium product.
The company stated that the Realm of the Unicorn product told the story of myth and legend, as the unicorn was an animal that resembled purity and honour and had featured on noble families’ emblems for centuries. The company explained that unicorns had featured in literature for thousands of years and had broad appeal amongst all age groups given their symbolism. On this basis, the company stated that it did not believe that unicorns had a particular appeal to children. The company highlighted three previous cases considered by the Panel regarding Firebox’s Unicorn Tears products which it ruled on in 2019 and noted that the Panel acknowledged that unicorn imagery ‘could hold a broad appeal for all age groups, given their symbolism’.
The company then addressed the image of the unicorn that appeared on the front label of the product. The company stated that the image was highly sophisticated and used fine intricate lines to define the mane, nose, ears and eyes of the unicorn, which had the effect of creating depth and precision to the image. The company explained that the head and nose were shaded to create the look of a real-life unicorn, rather than a cartoon character, and that it was an image that one would expect to find within art or adult literature. The company stated that it was deliberately not a childish image. The company explained that professional illustrators and designers had developed the unicorn image and that the company had instructed them not to create it as childlike or cartoonish.
The company shared an image of two unicorns with a rainbow positioned between them and stated that, at the time of development, a wholesaler had been aware of its plans and provided them with the image to base a design of the label on. The co-founders of the company disapproved of the image as it had a cartoon and childlike design and were aware that it was the type of image that the Portman Group would likely rule against. The company therefore rejected the design concept as it did not want to risk its integrity and reputation.
The company then provided examples of unicorn artwork on adult products and also provided examples of unicorn artwork that were typically found on children’s products to demonstrate the difference in artwork. The company shared images of the front cover of four books and one painting that featured unicorns found on products aimed at adults. These books were The Unicorn Anthology by Peter S. Beagle; Demons and Unicorns by Maggie Evans; Journey of the Two Unicorns by Lucy Linn Fells; and a unicorn colouring book for adults. The painting was unnamed but created by Lisa Whitehouse.
The company then provided images of the front cover of five books that featured unicorns that were aimed at children. These books were Little Miss Stubborn and the Unicorn by Roger Hargreaves; a journal aimed at 5 year olds that stated on the cover “I am 5 & Magical!”; Thelma the Unicorn by Aaron Blabey; A Unicorn Named Sparkle by Amy Young; and My Magical Unicorn by Campbell Books. The company also submitted three images of bath products that were aimed at children and featured unicorns on the label. These products were Carex Unicorn Magic Shower and Bath Gel; Unicorn Bubble Bath by Southern Sass; and Luksja Magic Unicorn Bath Foam.
The company explained that the colour of the images used in the products for children were bright, bold and contrasting whereas the colours in the products for adults were demure and complexly shaded and blended. The company pointed out that the packaging of the Realm of the Unicorn product was not bright, loud, artificial or contrasting.
The company highlighted two previous cases heard by the Panel; Gamma Ray (2015) and Captain Morgan (2016). The company noted that in the Gamma Ray case, the Panel had sought expert opinion on colour-based appeal to under-18s and that bolder colours with greater contrast tended to gain the attention of children. The Panel had concluded in that case that the contrast between the colours was not strong and did not have particular appeal to under-18s. The company also noted that the Panel had applied the same reasoning in the Captain Morgan case and did not uphold the complaint based on the colour of the label. The company then compared the Realm of the Unicorn product with these two previous cases and suggested that the colours used on its label were not luminescent, bright or contrasting and that compared to the Gamma Ray and Captain Morgan cases, the colours were less bright and contrasting and therefore did not have particular appeal to under-18s.
The company then addressed the text used on the Realm of the Unicorn. The company pointed out that there was a lot of text to read at the top of the label and on the two sides next to the unicorn which it said under-18s would not be typically drawn to, as this demographic preferred products that conveyed messages in a smaller number of words. The company explained that the font used was a Saxon derivative of roman typeface and that it contained roman numerals which would not have particular appeal to under-18s. The company also noted that the label did not use a single type of font and so the eye would not be drawn to any one part of the text, and therefore would be unlikely to have a particular appeal to under-18s.
The company explained that the bee image was the Zymurgorium brand logo. The company stated that bees appealed to all age groups due to their multi-functional abilities and were arguably more popular amongst adults due to the benefits they presented to the environment and to general well-being. The company explained that as a Manchester based business, the worker bee was chosen as one of the best-known symbols of Manchester and has been the emblem for the city for over 150 years denoting a Mancunians’ hard work ethic and the city being a hive of activity. The company stated that the image used intricate lines which gave the bee a life-like, rather than cartoon effect. The company highlighted the Panel’s previous decision against Zymurgorium’s Rhubarb and Cranberry Gin Liqueur which also considered the use of the bee image but did not find the product in breach of the Code.
The company then focused on the complainant’s assertion that the product had a ‘pearlised effect’. The company explained that the product contained Candurin which gave it a shimmer effect but noted that it would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously. The company highlighted the Flamingo Tears Gin and Pixie Tears Gin Panel decisions which featured products that both contained the same ingredient and resulted in the same shimmer effect as Realm of the Unicorn. The company also highlighted that the Flamingo label referenced ‘magic’ in the context of making the product shimmer. In those cases, neither complaint was upheld under rule 3.2(h).
In response to the complainant’s point about mistaking the product for child’s bubble bath, the company stated that the product would only be found in the spirits aisle of shops and that the RRP of the product was £14.99, in comparison to child’s bubble bath that had an average price of £1 to £3.50. The company said that it believed that this point raised by the complainant indicated that it was a malicious complaint designed to cause the company harm, rather than it being a legitimate complaint from a member of the public. The company noted that in the letter the Portman Group sent to the company regarding the complaint, the product was referred to as a ‘gin-based liqueur.’ The company asserted that the product had not displayed ‘gin-based liqueur’ on the label since 2019 and had since been labelled as ‘Premium Gin Liqueur.’ The company believed that the complainant was likely a competitor and asked the Panel to take this into strong consideration.
The company also stated that the product was clearly identifiable as an alcoholic product and so would not be confused with child’s bubble bath.
In regard to the product communicating its alcoholic nature with absolute clarity, the company pointed out that both products – whether the older version the complainant had complained about, or the up-to-date version – stated the alcoholic nature with the descriptors ‘gin-based liqueur’ and ‘premium gin liqueur’ and that this was in black capitalised font on the front of the label. The company stated that the alcoholic strength by volume (ABV) of 20% was in bold, black, capitalised text and was in a hexagon shape in order to stand out from the rest of the label. The company also highlighted that the side of the label contained relevant regulatory information including the UK pregnancy warning, a reference to alcohol units and a link to the Drinkaware website. Lastly, the company mentioned that the shape of the bottle was that of traditional spirit bottles and the top contained an anti-tamper seal which contributed to the product’s positive alcohol cues. The company therefore believed that the product clearly communicated the alcohol nature of the drink and would not be mistaken for a product that was suitable for under-18s.
The company then referenced a number of previous cases considered by the Panel under rule 3.2(h) of the Code and highlighted how these cases were similar to the Realm of the Unicorn product.
The first ruling the company referenced was Thrillseeker which was considered by the Panel in 2019. The company highlighted that the Panel ruled that the images on Thrillseeker were adult in nature due to the graphic novel style of the design and that the spacemen illustrations could be seen to have appeal to both adults and children but that it would be unlikely to have particular appeal to under-18s.
The second ruling the company highlighted was Pixie Tears which was also considered by the Panel in 2019. The company stated that in the Pixie Tears case the Panel ruled that the art-deco line drawing of the pixie was unlikely to have particular appeal to under-18s, but that fairy-tale characters could hold potential appeal depending on the imagery used. In that case, whilst the Panel had considered that the use of the pixie was close to the line in terms of acceptability, as it was not drawn in a cartoon-style, it was not considered to have appeal to young children. The company stated that the image of the fairy was created using thick, bold lines which were more simplistic and cartoonish than any of the images used on the Realm of the Unicorn.
The third ruling the company referenced was the Zymurgorium Forced Darkeside Gin case which looked at, in part, whether it breached rule 3.2(h), but the Panel did not uphold. The company noted that the Panel had found that the label in that case was not overly childish in its design. The company believed that that product was more exciting and eventful in its artwork than the Realm of the Unicorn and that it could not be said to have more appeal to under-18s than the Forced Darkeside Gin.
The fourth ruling the company highlighted was the Flamingo Tears case, where the Panel had ruled that whilst flamingos might have some appeal to a teenage market, it was not predominantly so and would appeal to an adult demographic as well. The company also argued that the Panel had found that the illustrations of the flamingos in that case were mature and stylised and that the font was staid. With regard to the shimmering effect of the liquid, the Panel considered that the overall design of the product was unlikely to have appeal to under-18s. The company stated that the flamingo and flower illustrations on Flamingo Tears were more cartoonish and likely to appeal to under-18s than the imagery on the Realm of the Unicorn. The company also highlighted that the bottle for Flamingo Tears was not the shape of a traditional spirit bottle and looked much more like a nail polish bottle. The company also believed that the bubbled, spaced out text on Flamingo Tears would be more appealing to youth culture than any of the fonts found on the Realm of the Unicorn.
The fifth ruling the company highlighted was the Fynoderee Manx Bumbee Vodka case which was not upheld on all points, including in regard to rule 3.2(h). In that case the Panel had found that whilst the design was whimsical, it was mature in design and the illustrations were adult in style. The company argued that the imagery on that product was very similar to the Realm of the Unicorn as both had complex and detailed artwork. The company believed that the images of the flowers and honeycomb were created using fine lines and complex blending of colours which created a similar level of depth and sophistication of the images used on the Realm of the Unicorn. However, the company stated that in comparison to Fynoderee Manx Bumbee Vodka, the Realm of the Unicorn did not use bright or contrasting colours, which would likely have appeal to under-18s.
The sixth ruling the company referenced was the Captain Morgan product range, which was not upheld in any aspects of the complaint, including rule 3.2(h). The company noted that the Panel had ruled that the image of the pirate was not a cartoon or cartoon-like and more closely resembled a piece of art or oil painting. The Panel also considered that the colours used were of a mature, shaded hue and that the image lacked luminescence or the bright colours that might be appealing to a younger audience. The company submitted that the colours of the pirate were more bright, bold and contrasting than the carefully blended slight colours used to create the unicorn. The company also believed that the pirate was more cartoonish in style compared to the unicorn which was more lifelike and therefore would not have more appeal to under-18s than the Captain Morgan product range.
The seventh ruling the company highlighted was the Gamma Ray case, which was not upheld in all aspects of the complaint, including in regard to rule 3.2(h). The company highlighted that the Panel had sought expert opinion on how colours could appeal to under-18s. The expert advice had stated that when creating visuals that appeal to children, the importance was on the level of luminance and contrast between the colours, rather than just bright colours. The expert opinion stated that bolder colours with greater contrast had more appeal to children. With regard to the decision made by the Panel, the company concluded that the contrast between the colours was not strong and on the basis of the colour of the packaging alone, would not have particular appeal to under-18s. The company argued that based on the Gamma Ray ruling, the same conclusions should also be drawn as Gamma Ray used the three bold colours of blue, red and yellow whereas the Realm of the Unicorn used a subtle blend of mainly greys and silvers.
The company also mentioned that in the Gamma Ray case, the Panel considered that whilst there was a risk of inadvertent appeal to teenagers aged 16 to 17 who might want to emulate adult behaviour, the images in question were of an adult nature. The company believed that the fine, lifelike drawing of the unicorn was more mature than Gamma Ray which featured a skeleton in a spacesuit wearing underpants, holding a gamma ray laser gun. The company stated that the Realm of the Unicorn would not have more appeal to under-18s than Gamma Ray.
The eighth ruling the company highlighted was the Lazy Sod case considered by the Panel in 2014 and was not upheld in all aspects of the complaint, including in respect to rule 3.2(h). The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular amongst a wide range of ages, it was particularly popular with children and teenagers and noted that the image of the monkey was a cartoon-style. However, the Panel had concluded that the product did not have particular appeal to under-18s. The company argued that the Realm of the Unicorn was not humourous and that it was unlikely that the image of the unicorn or the bee would have more appeal to under-18s than an image of a cartoon monkey wearing sunglasses, sipping a drink under an umbrella.
The ninth ruling the company highlighted was Grumpy Git that was also considered by the Panel in 2014 but was not upheld, including in regard to rule 3.2(h.) The company stated that the Panel had ruled that whilst the type of humour displayed by the product was popular among a wide range of ages, it was particularly popular with children and teenagers and recognised the cartoon-style of the image of the old man. However, the Panel had concluded that it did not have particular appeal to under-18s. The company argued that the imagery and font of Grumpy Git was more likely to have appeal to under-18s than the imagery or font on the Realm of the Unicorn. The company also suggested that the Realm of the Unicorn was mature in its appearance and feel, in comparison to Grumpy Git where the text and cartoon of the old man were funny and the colours were bold and artificial.
The tenth ruling the company submitted was the Unicorn Tears Raspberry Gin Liqueur and the Unicorn Tears Gin Liqueur which were both found by the Panel to breach rule 3.2(h) of the Code. In those cases, the Panel acknowledged that the unicorn imagery could hold broad appeal to all age groups. The Panel also found in those cases that the illustrations of the unicorns had the appearance of a child’s drawing and would not be out of place as a logo on a child’s product. The Panel noted that the thick, uneven typeface further compounded the childlike presentation of the products. The Panel also compared the illustration and typeface in the context of the previous expert opinion that it had received in the Gamma Ray case which stated that bold black lines were a marketing tool used to appeal to children. In contrast, the company argued that the Realm of the Unicorn did not use thick black lines or typeface in its imagery or font. The company also stated that the unicorn did not look like it had been drawn by a child, and that it was obvious it had been created carefully by a professional designer.
The Panel’s assessment:
The Panel discussed whether the product should be considered under any Code rule other than 3.2(h) as raised by the complainant. The Panel agreed that this was not required.
The Panel carefully considered the producer’s response. The Panel noted that the company had provided an extensive and detailed written submission and commended the producer for its response to the complaint. The Panel discussed the producer’s assertion that the complainant was likely to be a competitor as the complaint referred to the term ‘gin-based liqueur’ which had not been used since 2019 as the product was currently labelled as a ‘premium gin liqueur’. The Panel noted that the producer’s website listed the product as a ‘gin-based liqueur’ and that the product imagery on the website also displayed this descriptor which may have caused confusion.
The Panel discussed whether the product packaging had a particular appeal to under-18s and considered the individual design elements of the packaging as well as the overall impression conveyed. The Panel considered the presentation of the unicorn artwork on the front label of the product and noted that the illustration was a sophisticated fine line drawing, with a muted pastel colour palette and did not employ the use of bold thick lines alongside bright and contrasting colours which the Panel had previously considered in past cases referenced by the producer in its written submission. The Panel reiterated the point that unicorns could hold a broad appeal for all age groups, given their symbolism and that compliance would be determined by the presentation of the unicorn and overall impression conveyed by the product. The Panel agreed that in this instance the sophisticated fine line drawing of the unicorn did not have a particular appeal to under-18s.
The Panel noted that the product incorporated a large amount of descriptive text in mature font on each side of the label which detailed the producer’s values and desire to bring sophistication and honour to ‘the purest mythological creature’ and a depiction that was ‘very different to the modern image’. Alongside these elements, the Panel noted that the label also incorporated the company’s brand logo of a bee which it had previously considered as part of the Forced Darkeside Gin case and noted that its presentation in this context was not cartoon-like and was well-known as the emblem for Manchester where the producer was based.
The Panel discussed the overall impression conveyed by the product and noted the complainant’s concern that the product looked akin to bubble bath. The Panel considered the traditional shape of the bottle and the numerous positive alcohol cues on the product which included the word ‘gin’, the product’s alcoholic strength by volume and a UK pregnancy warning which clearly communicated the alcoholic nature of the product with absolute clarity. The Panel discussed further design features that included a silver wax seal on the top of the bottle which supported the producer’s assertion that the product was a luxury premium brand not aimed at children. The Panel noted that the product contained candurin to give the product a shimmer effect and discussed the producer’s response which stated that the product would not shimmer on shelf unless the bottle was picked up and shaken fairly vigorously. Upon closer inspection, the Panel considered that the product still had a shimmer effect when slightly turn by hand. However, the Panel considered that the combination of the pale pink liquid colour and shimmer effect did not have a particular appeal to under- 18s
Overall, the Panel considered that the sophisticated unicorn artwork, muted colour palette and shimmer effect of the liquid were unlikely to have a particular appeal to under-18s when considered as individual elements or when taken in combination and accordingly did not uphold the complaint under Code rule 3.2(h).
Action by Company: