Final Decision: 18 August 1997
Considered under the 1st Edition of the Code
“The product strongly resembles a children’s ‘ice pop’, thereby contravening paragraph 3(5) of the Code which states that there should be ‘no confusion of identity with a non-alcoholic product’ and paragraph 3(8) which states that ‘packaging and point of sale materials should not predominantly appeal to under 18s’.
The Portman Group
Under Code paragraph 2.1(d)
Brand names and product descriptors should not encourage immoderate, illegal or irresponsible consumption such as binge drinking, drunkenness, drink driving, purchase by or sale to under 18s.
Under Code paragraph 2.1(e)
Brand names and product descriptors should not suggest an association with violent, aggressive, dangerous or anti-social imagery or behaviour.
Under Code paragraph 3(5)
Packaging and point of sale materials should ensure that there can be no confusion of identity with non-alcohol product.
Under Code paragraph 3(8)
Packaging and point of sale materials should not predominantly appeal to under 18s.
The Company in a fax dated 15th August 1997 suggested that the Panel review ‘Spiked Ice’ in relation to both the wording and meaning of both the existing and the new Codes. The Panel decided that it should consider the product only under the existing Code; it would be inappropriate and premature to consider it under the new Code. Only complaints made on or after 1st September 1997 can be considered by the Panel in accordance with the provisions of the new Code. Thus, as of the date of the Panel meeting, the Panel was not empowered to consider this product under the new Code. The Panel, however, recognised that a finding under the old Code would not necessarily preclude a complaint and a different finding under the new Code.’
The Panel noted the following dictionary definitions:
‘SPIKE’ has the meanings of ‘to add alcohol to (a drink); ‘lace (a drink) with alcohol, a drug etc’; ‘contaminate (a substance) with something added’; ‘to adulterate (an intoxicant)…it may denote the addition of alcohol to a non-alcoholic drink’. In American slang, the word means a hypodermic needle. The word ‘LACE’ means ‘add an ingredient to (a drink, dish, substance etc…) to enhance or adulterate flavour, strength, effect etc’.
The Panel considered first whether the name ‘Spike Ice’, with its connotations of ‘lacing’ a drink to make it alcoholic and possible connotations, suggested anti-social behaviour and/or behaviour that could lead to drunkenness and drink driving. The Panel considered, taking account of the Company’s submission of 30 June 1997, that neither the naming nor the product descriptor could be said to have those effects and that it would be “stretching it” to regard the name and product descriptor as contravening paragraphs 2.1(d) or (e) of the Code.
The Panel then considered whether the packaging conforms with paragraphs 3(5) and (8) of the Code taking into account the Company’s further submissions by letter dated 13th August 1997 as well as reconsidering its earlier submissions.
In relation to the packaging, the Panel considered that the product has adopted the idiom or style of frozen soft drinks – a wholly or partly transparent sachet. In reaching that view the Panel was assisted by examining two Thorntons Buster 140mm ice pops.
The Panel, having looked at the product, and having considered the Company’s submissions dated 13th August 1997, accepted that the alcoholic nature of the product is clearly shown. However, the Panel was of the view that this did not suffice to prevent confusion of identity with non-alcoholic products when the style of packaging, as here, was that of frozen soft drinks.
As to whether the packaging and point of sale materials predominantly appealed to under 18s, the Panel considered that this must be viewed objectively and without regard to submissions about he intended or actual place or manner of retail sale since these are factors which might change over time. In the Panel’s view, the packaging, resembling (as it does) children’s ice pops, clearly appeals predominantly to under 18s. The Panel did not accept the Company’s analogy under which it was permissible to have the same size cans for alcoholic and non-alcoholic beverages. Sachets of ice pops are of particular appeal to very young children and are normally kept in freezer compartments. Thus, having carefully considered and taken into account the further submissions of the Company, the Panel remained of the view that the product predominantly appeals to under 18s.
The Panel noted the Company’s submission that advice was taken of the Pre-Launch Advisory Service before the product was launched and that suggestions made by the latter were taken into account. The Panel also noted that it is made clear to those seeking advice from the Pre-Launch Advisory Service that any comments made are merely advisory: the Panel is independent and cannot be bound by any such advice given.
The Panel, therefore, upheld the complaint under paragraphs 3(5) and (8) of the Code.