“We have had the below concerns raised to our department via another Police Officer regarding the labeling (sic) of the following drinks: [another producer’s product – redacted] Mikkeller – Side Eyes and American Dream both showing cartoon characters. Given that they are both the same size as standard can of coke adds to our concerns around the appeal to under 18s. The drinks were out of reach to children”
These drinks were seen in Sainsbury’s in Warlingham CR6 9DY
Under Code paragraph 3.1
The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.
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)
The company’s submission
In response to the complainant’s claim that the product did not comply with rule 3.1 of the Code, the company stated that it did not agree. The company explained that it was easy for a consumer to quickly ascertain that the drink contained alcohol as the can had the alcohol by volume (ABV) clearly marked on the can, along with a list of other ingredients and an indication that the drink was ‘brewed’. The company also highlighted that the top of the can included ‘Side Eyes Pale Ale’ in capital letters and that pale ale was an old and well-known term for a popular type of beer. The company stated that the design of the label was not overly busy, and this ensured the alcoholic nature of the product was communicated with absolute clarity.
In summary, the company stated that there were several cues on the packaging that indicated the alcoholic nature of the product:
- The alcohol by volume was displayed in connection with the ingredients list;
- The words ‘Pale Ale’, commonly known as a type of beer, appeared in capital letters on the top of the label;
- The word ‘beer’ was conveyed in different languages (including English);
- Barley malt, oat flakes, hops and yeast were all listed as ingredients which were commonly associated with beer;
- The label stated that the product was ‘brewed’;
- All of the information on the label was used in reference to an alcoholic drink and did not include any conflicting language or imagery.
The company then addressed the complainant’s concern that the product did not comply with rule 3.2(h) of the Code. The company stated that it had never been its intention for Side Eyes to appeal to under-18s and that the product had never been targeted at under-18s through its packaging, promotional material or any other activity. The company noted that the complainant had also stated that the drink was out of the reach of children.
The company explained that it had collaborated with the respected artist and designer, Keith Shore, who had developed a Mikkeller-universe which aimed to refresh the way beer was branded. The company explained that the colourful universe was introduced to make its products more appealing to more than just the typical beer consumer and to attract female consumers. The company stated that Mr Shore had created unique artwork for modern adult consumers and not cartoons that would have a particular appeal to children.
The company asserted that illustrated characters could also appeal to adults and highlighted that there were entire genres and styles that were geared towards adults, such as graphic novels and Japanese anime. The company stated that other beer companies also used illustrated characters as part of a self-taught style of art on packaging.
The company cited previous decisions made by the Independent Complaints Panel, including Keller Pils, Buoyancy Aid and Flamingo Tears Pink Grapefruit Gin, which it believed confirmed that illustrated characters were not in themselves a violation of Code paragraph 3.2(h). The company stated that the illustrations depicted on the packaging were not of particular appeal to children and reflected adult characters in a 1950s style. The company explained that the characters were styled in an ‘oddball’ manner and did not reflect a style that would be of particular appeal to people under the age of 25. The company further explained that the male character portrayed on the packaging wore a traditional hat, whilst the female character had big distinctive hair in a style that was unlikely to appeal to children. The company stated that the artwork used on the packaging was colourful and quirky, but not in a way which was likely to be of particular appeal to under-18s. The company reiterated that the characters were not reminiscent of children’s animation and were inspired by pop art and other modern art styles that would be of interest to adults and therefore directly targeted at that age group.
The company stated that all of the language used on the can was exclusively focused on communicating facts about the beer and did not adopt a tone of voice likely to be of particular appeal to under-18s. The company also highlighted that the font used on the can was neutral in style.
The company stated that the overall impression conveyed by the product did not lead it to have a particular appeal to children and concluded that it was not in breach of Code rule 3.2(h).
In response to the Panel’s provisional decision that the product breached Code rule 3.2(h), the company said it did not agree with the comparison to Minecraft. The company said Minecraft was more reminiscent of, for example, some regular Lego characters and Lego Duplo which was popular with under-18s, whereas the illustrations on the Side Eyes can were more reminiscent of pop art. The company also said that it was common to have more than one illustrated character in art or communication to adults and that this method was not specifically used for illustrations targeted at, or designed to appeal to, under-18s. The company stated that multiple characters were common in illustrations geared towards adults including graphic novels, Japanese Anime and in pop art. The company disagreed that the multiple characters on the can caused the illustrations to have a particular appeal to under-18s.
The company did not agree with the conclusion that a cumulative effect of the bold lines, bright contrast colours and presentation of multiple cartoonish characters meant that Side Eyes had a particular appeal to under-18s. The company maintained its assessment that, taking into account the artistic illustrations, the factual-language and the neutral font, the Side Eyes can did not have a particular appeal to children.
The Panel’s assessment
Code rule 3.1
The Panel first discussed whether the packaging communicated the alcoholic nature of the drink with absolute clarity. The Panel discussed the company’s response and explanation for the use of the brand imagery and labelling. The Panel considered the artwork that wrapped around three quarters of the can and the overall impression conveyed by the product packaging.
The Panel observed that the front of the can had minimal positive cues indicating alcoholic content and that it mainly comprised of the artwork that had been designed for the product. The Panel discussed the company’s submission but considered that the word ‘brewed’ could appear on soft drinks and the expansion of the alcohol-free market in the UK meant that this term alone could not be relied upon to communicate the alcoholic nature of a product. The Panel went on to consider the overall impression conveyed by the can and noted the use of the word ‘Ale’ on the back label in the same field of vision as the alcoholic strength by volume (ABV). The Panel also noted that ‘Pale Ale’ appeared in large bold font around the top of the can and that this was a common term used to refer to alcoholic beer. The Panel discussed the company’s response that the product was sold on a retail shelf out of the reach of children and reminded producers that the positioning of a product in retail space did not fall within the regulatory remit of the Code and that the product had to be considered as though it could appear in a home environment. The Panel noted that the product was not produced exclusively for the UK market and that the back of the label was therefore missing some positive alcohol cues that UK consumers would be familiar with, for instance, the product’s unit content, signposting to Drinkaware and the UK Chief Medical Officers’ Low Risk Drinking Guidelines.
The Panel debated at length the overall impression conveyed by the product and acknowledged that there was no distinction between the front and back of a product when determining the alcoholic nature of a product as an average consumer would pick up the product and assess it in its entirety. The Panel noted that the can had complied with minimum legal requirements and that there was no contradictory language used on the product which may detract from the product’s alcoholic nature. Based on the overall impression conveyed by the product, the Panel concluded that the packaging did not breach rule 3.1. The Panel, however, also agreed that the product could be clearer when communicating its alcoholic nature with absolute clarity and encouraged the producer to consider placing the ABV on the front of the label in the future.
Code rule 3.2(h)
The Panel then discussed whether the packaging was in breach of Code rule 3.2(h). The Panel discussed the artwork on the front of the can and noted that this was particularly cartoon-like and reminiscent of Minecraft which was popular with under-18s. The Panel noted that the artwork used bold lines with bright primary contrast colours that were likely to have a particular appeal to younger children. The Panel discussed the nature of the artwork at length and carefully considered the simplistic design of the characters on the can. The Panel considered that, in this particular instance, the artwork appeared immature and the inclusion of more than one character contributed to the overall impression that the illustration was childish in its appearance. The Panel discussed the company’s response to the provisional decision but noted that the company had not produced any new evidence to consider and therefore maintained the view that the cumulative effect of the bold lines, bright contrast colours and presentation of multiple cartoonish characters meant that the product had a particular appeal to under-18s.The Panel accordingly upheld the complaint under Code rule 3.2(h).
The Panel acknowledged that some producers sought to use bright contrast colours to stand out on shelf but urged producers to consider the inadvertent appeal this may create for young children.
The Panel also discussed the presentation of the company’s brand logo which had a similar artistic style as the artwork on the front of the can and consisted of a dark line drawing. The Panel considered that the brand logo was quite prominent on the back of the can and discussed whether its prominence on the packaging could inadvertently become part of the brand narrative, rather than simply a corporate logo. The Panel considered that in this context the company logo did not have a particular appeal to under-18s but urged caution of its use in the future depending on the overall impression conveyed by the rest of the product packaging and the prominence of the logo in this context.
Action by Company:
Working with the Advisory Service.