24 October 2019
Considered under the 6th Edition of the Code.
“Potential breach due to brand name – Trade marks or brands names which imply a slimming effect or an amount of weight loss should be avoided. The bottle states that there is 30% less calories than a regular lager. It also states that low sugar, low carb & gluten free…”.
Zenith Global (as part of the independent audit of the Sixth Edition of the Code 2019)
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 has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour
The company’s submission
The company stated that SkinnyBrands was founded in 2015 and was born out of a need to innovate, pursue emerging and growing tends, to push boundaries and respond to demand. The company said the product was created for mindful, aware and increasingly informed individuals. The company described the product as clean, crisp and refreshing, premium lager at 4% ABV which had 89 calories per bottle and was vegan, gluten free and kosher. The company included a chart showing the calorie content of their product and other premium lagers.
The company pointed to the labelling as evidence that ‘Skinny’ is referring to a reduction in calories:
- ‘35% fewer calories than other premium lagers’ (back)
- ’89 calories’ (front)
- ‘A nutrition table’ (back)
The company highlighted there was no reference to ‘weight loss’, ‘diet’, ‘health’ or images of slim figures. The company stated that there was no suggestion the name related to a person rather than a product; the product was not called ‘SkinnyMe’ or ‘SkinnyGirl’.
The company explained that the ‘30% less calories’ was from an old label, and now read 35%. The company pointed to the table provided as evidence for this number. The company also explained ‘low sugar’ and ‘low carb’ were removed from the label in 2017. The company stated that the product was ‘gluten free’, to meet the requirement a product needs <20ppm and SkinnyBrands Lager is <10ppm.
The company included The Portman Group Advisory Service’s advice which it had received on a rebranded version of the product:
“We can understand the argument that ‘skinny’ is used in everyday terminology to describe a lower calorie product i.e. skinny latte. However, there is still the potential that this could be interpreted as a claim in a name i.e. the product will help you on your weight loss journey to ‘skinny’. If the term is used in relation to reduced aspects of the product, i.e. reduced sugar, calories, abv, then this could be fine but if there is any suggestion that the product will aid someone to be ‘skinny’ it could become problematic. Compliance will ultimately depend on the overall impression conveyed by the label, if the product includes an image of a slim figure of a person then that would create a direct link to the name ‘skinny’ and an indirect implied health effect of the product. After considering the label of Skinny Brands, we do not believe that there are any other elements on the product packaging which suggest that the product is going to have a slimming effect, the back label clearly references the reduction in calories, sugar and carbs which we believe the ‘skinny’ in the brand name is alluding to.”
The company also included the guidance given to their employees for the language used in communicating the product which was clear that any information provided about the product needed to be factual and not comparative.
The company also explained that, in their marketing, they strove to deliver a clear message that did not confuse or consist of misleading statements. The company included pictures of their new packaging.
The company concluded by explaining that SkinnyBrands had no legal association or connection with SkinnyBooze (an E-Commerce platform selling reduced calorie alcohol). The Company explained that SkinnyBooze was a customer like Tesco, Asda and Amazon.
The Panel’s assessment
The Chair firstly made the Panel aware that the product being considered was not the current SkinnyBrands Lager packaging but that the Panel should limit their deliberations to the packaging from the complaint which had arisen as part of an audit ahead of the new Code coming into force. She also noted that the advice which the company had provided, given by the Advisory Service, did not relate to the product referred to in the complaint and should therefore be disregarded.
The Code Secretariat reminded the panel that alcohol over 1.2% ABV could not make nutritional claims on the packaging. The Panel noted that the packaging in front of the Panel was in breach of EU labelling regulations, but that the company had subsequently made changes two years previously, showing they had understood the legal issues connected to the claims that the product had lower sugar and carbs.
The Panel’s main concern was the brand name “Skinny”. The Panel discussed the various meanings of “skinny” and agreed that in this context, it was making a factual claim about calorie content. The Panel agreed that it was a product description, and had seen and consumed other similarly branded products, including “skinny” takeaway coffees, or various desserts, that enabled consumers to make an informed choice, not a health claim. The Panel were confident that the average consumer would be familiar with ‘skinny’ as a product descriptor in this context and would not connect it to health or fitness claims. The Panel noted that the claims that the product contained lower calories, was gluten free and vegan were all factual claims intended to inform and promote customer choice.
The Panel carefully considered whether the product was suggesting it could reduce weight. The Panel raised the shape of the logo as it appeared on the bottle, which was long, thin and written vertically. The Panel felt this reflected the word “skinny” rather than making any suggestion that the product could help the consumer lose weight. The Panel also considered the appearance of the logo on the secondary packaging, and carefully discussed whether this promoted the idea the product could aid in weight loss. The Panel concluded that the box did not suggest this, because of the relatively plain packaging and the use of factual claims. The Panel noted that there were no people depicted on any of the packaging, and considered that it was not promoting a particular lifestyle or suggesting it could aid weight loss by showing thin or active people.
The Panel concluded that the name ‘Skinny’ could be potentially problematic but in this case, having considered the overall impression conveyed by the packaging, they decided that the product did not breach Code Rule 3.2 (j).
Action by Company