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Company: Lost and Grounded Brewers Ltd
Breach: Yes
Final Decision: 30 January 2020

Considered under the 6th Edition of the Code.

Complaint summary

“I’d like to make a complaint about two beers by Lost and Grounded. I saw them in Waitrose yesterday (4th Sept) and felt that they were likely to be of strong appeal to children, breaching rule 3.2(h) of the Code.

They both feature anthropomorphic, slightly cartoony animals. The Running With Sceptres can features a parade of these animals very prominently, and the poses seem very much inspired by children’s book Where the Wild Things Are. The Keller Pils beer had fewer animals on it, but nevertheless for me the cutesy animal in a rowing boat made an instant association with children’s classic The Wind in the Willows.”.

Complainant

Member of the public

Decision

Under Code paragraph 3.2 (h):

A drink’s name, its packaging and any promotional material or activity should not have a particular appeal to under-18s

UPHELD

The company’s submission

The company first addressed the claim that the products had strong appeal to children. The company stated they disagreed with the complaint; there were numerous factors which reduced the likelihood of children trying to purchase or being attracted to the products. The company said there were numerous examples of the industry using branding assets like theirs.

The company explained the background of the brewery: they took inspiration from the tradition of Belgian brewing, which they explained was a prominent part of Belgium’s history and folklore. The company pointed to illustrations used by other well-known brewers. The company stated they were a young company, three years old, and had developed this branding over 6 months between 2015 and 2016. The company stated the branding was produced by an independent freelance illustrator taking inspiration from the company’s values. The company stated all were original works of art and the labels told personal stories or the company’s ethos, all with humble, kind and inclusive meanings behind them.

The company highlighted the product description on their website:

Running with Sceptres: ‘A sceptre is something normally reserved for the likes of royalty, but we all carry a sceptre – something that makes us special. For this India Pale Lager, we combine Pilsner, Vienna and Caramalts with a huge whack of hops to make what we call a Special Lager Beer. 5.2% ABV. 16 EBC. 38 IBU’

The company said they had never targeted children and only advertised in niche publications targeted at adult food and beverage customers. The company also said their products had predominately been sold in on-trade environments to licensed premises.

The company said they ran a socially responsible company and had been a Living Wage accredited business since their inception. The company highlighted local charities they had supported. The company stated they have never received a complaint despite both products appearing on national TV and in national weekly publications. The company also highlighted that, despite +8,100 Instagram, 5,750 Twitter and 3,300 Facebook followers, they had never received a complaint.

The company stated only a minority of their volume had been sold in Waitrose (<10%) and was sold solely in the alcohol section. The company highlighted they had not sold products to other large multiple retailers. The company explained that the price of £2.50 (Keller Pils) and £2.60 (Running with Sceptres) were two of the most expensive lagers in Waitrose, and the premium price appealed to adults and not children.

The company stated that the drinks were sold in 440ml cans, differentiating them from sizes used by soft or energy drink companies. The company highlighted the beer terminology used to label the front and back including the phrase “India Pale Lager”. The company said the alcoholic strength by volume was clearly legible in large font on the label, and the name Lost and Grounded Brewers was on the side, indicating they were a beer company.

The company stated the labels featured artistic illustrations, not cartoons; they said cartoons were animated, with developed stories and typically designed for children, not a singular label or artwork. The company explained the branding was colourful yet adult, as they were extremely detailed, layered and nuanced. The company also explained the cans had matte finishes with considered tones to appeal to adult consumers, not bright colours and a glossy finish which might be more likely to attract children.

The company said illustrations and animals or other characters used for beer branding were not unique to Lost and Grounded Brewers. The company gave examples of other beer producers who used images of animals, unique characters or illustrations on their labels.

The company said they disagreed with the complaint and that their reasoning was based on the retail environment, packaging, label format and artwork. The company reiterated the use of illustrations or special characters was not unique to Lost and Grounded and was well established in beer branding across the industry.

In response to the provisional decision that the product breached Code rule 3.2 (h), the company stated the product made up 10% of their sales. The company explained a negative decision would be financially disastrous, result in the loss of a major account, limit sales, write off branding assets and cause confusion. The company stated they were socially responsible and had shareholders with extensive experience in the brewing industry.

The company expressed disappointment to have been found in breach following a single complaint, and found it strange that a consumer would have such good knowledge of the Code. The company argued their product was nothing like RTDs or Alcopops from the 1990s which were arguably designed to attract teenagers. The company also stated there was parental responsibility and raised the example of brightly coloured chemical bottles.

The company denied the images were cartoony and said there was no connection to ‘Where the Wild Things Are’. The company stated children were attracted to bright, contrasting colours and bold shapes; they said ‘Running With Sceptres’ was extremely tonal in nature with fine outlines which appealed to adults. The company listed cartoon examples which were directed at children and noted all the animals were extremely humanised, with large, bright eyes and friendly smiles.

The company also listed drinks whose branding were designed to specifically appeal to children and noted they did not share the same characteristics. The company stated the animals on Running with Sceptres were not overly-enhanced to humanise them and were quite anatomically correct. The company disputed the complainants’ view that the animals were ‘friendly looking’, arguing that the animals were not facing forward and the ‘friendly’ was a very subjective statement. The company stated the consumer would have to rotate the can to see the whole image and so would view the ALC.%, product descriptor and see it was beer.

The company argued that there was a difference between anthropomorphism and personification.  They argued the sceptres in the illustration were a play on the name and not designed to make the animals look more human. The company concluded the product was not “cartoony” as a cartoon was a series of illustrations, not a single image.

The Panel ’s assessment

The Panel acknowledged the detailed response submitted by the company and thanked them for attending the meeting to give an oral presentation. The Panel noted that, after receiving the complaint, the producers had sought opinions on appeal to children.

The Panel noted the packaging used muted colours and a matte finish which at first glance gave the can a more adult character.  The Panel thought the overall impression was retro and, in its view, as previously expressed in other decisions, retro or nostalgic imagery because of its link to the childhoods of adult consumers had to work hard not to also appeal to today’s children.

The Panel considered that the illustrations of animals on this packaging were prominent and stood out on the muted can design.  They considered that the illustration was reminiscent of children’s books where animals often behaved with, and were illustrated as having, human characteristics: they noted the animals were depicted smiling, gripping the sceptres and the walking on their hind legs, which the Panel still considered to be anthropomorphic elements.  The Panel noted that muted storybook designs – such as ‘Peter Rabbit’ – still appealed to today’s children.

The Panel acknowledged the producer’s comments that stockists had not objected to the packaging and that the retail environment and price point would prevent children from buying Running with Sceptres.  The Panel considered, however, that the Code gave the primary responsibility for compliance to producers, not retailers, and that the rule covered the impact of packaging on children who might encounter it in their homes, for example, not merely the risk that a child might buy a product by mistake.

The Panel acknowledged that the producers had not deliberately tried to target children and that the muted colours and retro style of illustration were intended to appeal to adults. The Panel believed the particular appeal to children was inadvertent and recognised that the company strove to be socially responsible. The Panel emphasised that they did not object to the product’s name or the overall brand identity, but considered that the prominence and anthropomorphic character of the animals on this specific packaging created a particular appeal to children.

After considering the overall impression conveyed by the packaging, the Panel upheld the complaint under Code rule 3.2(h).

Action by Company

The company decided not to work with the Portman Group advisory service to amend their product in line with the Panel’s ruling. Therefore, the Retailer Alert Bulletin below was issued.

RAB – Running with Sceptres