Company: Tubular Drinks Co.
Breach: Yes
Final Decision: 11 May 2010
Considered under the 4th Edition of the Code.
Complaint Summary
“Alcohol Focus Scotland would like to complain about these drinks in relation to clauses 3.2 (f) and (g) of The Portman Group’s Code of Practice which state that a drink, its packaging and any promotional activity should not encourage irresponsible or immoderate consumption or urge the consumer to drink rapidly or to “down” a product in one. All of these drinks are sold in test tube packaging which means they are clearly designed to be downed in one go rather than sipped. The containers cannot be set down on a flat surface so the consumer has to drink it all at once. It is the view of Alcohol Focus Scotland that these products do not promote a positive message of safe and responsible drinking and clearly breach The Portman Group’s Code of Practice.”
Complainant
Alcohol Focus Scotland
Decision
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.
NOT UPHELD
Under Code paragraph 3.2(g)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way urge the consumer to drink rapidly or to “down” a product in one.
NOT UPHELD
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 can enhance mental or physical capabilities.
UPHELD
The company’s submission
The company said that they had been producing test-tube cocktails since 1991. They claimed that test-tube drinks were no more likely to encourage “down-in-one” drinking than many other shot-style spirit drinks that were more widely available. They disputed that the rounded bottom design meant that consumers were bound to drink the contents in one go and pointed out that, if a consumer wished, they could re-seal the container and lay it flat, or in a pocket, until they wanted another sip. They maintained that test-tube drinks had a relatively high price and limited distribution and that the problem of irresponsible or “binge” drinking was largely driven by cheap, widely available drinks in conventional packaging.
The Panel’s assessment
The Panel asked the Portman Group to commission independent research into the way in which consumers tended to drink products in test-tube containers and their perceptions of such products.
The Panel noted from the research that it was highly likely that a test-tube drink would be consumed ‘down-in-one’ by the drinker. It also noted, however, that only a minority of drinkers cited the test-tube design as the cause of this drinking behaviour; drinkers were more likely to claim that they drank the product ‘down-in-one’ because of the small volume of liquid in the test-tube. The Panel also noted the company’s arguments. The Panel acknowledged it had previously made decisions that implied a drink in a test-tube container would inevitably breach the Code for urging ‘down-in-one’ consumption (see 2009 decisions on Rampant and Mmwah!). In light of the fresh arguments and evidence that had been made available, however, and considering the relatively small quantity of alcohol contained in each test-tube (20ml at 15% ABV which equals 0.3 of a unit), the Panel considered that this product was unlikely to cause harmful drinking behaviour and did not breach the spirit of Code in terms of urging ’down-in-one’ consumption. Accordingly, the Panel did not find the product in breach of Code paragraph 3.2(g).
The Panel acknowledged that, in view of the low volume of alcohol in each container, the product’s packaging could not be said to be encouraging immoderate consumption. Accordingly, the Panel did not find the product in breach of Code paragraph 3.2(f).
The Panel noted, however, that one of the variants in the Shootaz range was described as “Energy flavour”. It considered that this implied that the product could enhance mental or physical performance and accordingly found the product in breach of Code paragraph 3.2(j).
Action by Company
The company agreed to withdraw the “Energy flavour” version of their product.