Producer:

Sainsbury’s Supermarkets Ltd

Complainant:

Zenith Global Commercial Ltd (as part of the independent proactive audit of the Naming and Packaging of Alcoholic Drinks Code, Sixth Edition Amended)

Complaint:

“The product has no clear alcohol labelling and visually resembles an RTD tea, which could mislead consumers about its alcoholic nature. Additionally, if the label is removed after opening, it further reduces transparency regarding the alcohol content, raising additional concerns”.

Decision:

Under Code paragraph 3.1 The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.

UPHELD

The company’s submission

The company stated that it did not believe that the drink’s packaging was in breach of the Portman Group’s Code of Practice. The company explained that the product communicated its alcoholic nature through the product name, which prominently stated “Tiramisu Rum Liqueur”; a universally recognised indicator of alcohol. The alcoholic strength by volume (ABV) was clearly stated as “20% vol 50cl” on the swing tag and the cork was marked as alcoholic. In addition to this, the descriptive text on the rear tag described the product as “a delicious blend of Caribbean rum, dark chocolate and coffee… creating a decadent liqueur”. The company addressed the suggestion that the product resembled a Ready-To-Drink (RTD) tea and stated that this was unsubstantiated. The company highlighted that the packaging format featured a glass, faceted bottle with a cork-style stopper and gold foiling which was not typical of RTD teas. The company stated this premium styling reflected a high-quality liqueur rather than a casual soft drink. Furthermore, the product was exclusively merchandised within the alcohol section, both in-store and online, reinforcing its alcoholic nature.

The company addressed concerns about the removable swing tag and explained whilst the swing tag was removable, the cork was permanently labelled with the product name “Tiramisu”, the alcoholic descriptor “Rum Liqueur” and “20% ABV” which ensured that the alcoholic nature remained clear. The company stated that further required information was presented on the swing tag at the point of sale and ensured that the product complied with labelling regulations.

As part of its response, the company shared a view from Oxfordshire County Council, the Primary Authority for Sainsbury’s Supermarkets Ltd. Oxfordshire Trading Standards (OTS) stated that its relationship with Sainsbury’s was to provide advice regarding the interpretation of Trading Standards legislation, in particular in relation to this matter, areas that covered Food Standards and Fair Trading, including misleading products. OTS confirmed that it had reviewed the complaint and that in its view the product complied with the Food Information to Consumers Regulations (1169/2011) which permitted mandatory food information to appear on a swing tag. OTS highlighted that the product was correctly labelled with the name of the food and its ABV and that its presentation was not misleading in any way. Addressing the other element of the complaint, OTS explained that the bottle design, a high-quality glass with a cork lid, clearly indicated an alcoholic product, not an RTD tea. The view provided by OTS concluded that the product communicated its alcoholic nature with absolute clarity and did not breach the Portman Group’s Code.

The company concluded that the Tiramisu Rum Liqueur complied with the Portman Group’s Code by clearly communicating its alcoholic nature and did not resemble a non-alcoholic drink. The company requested the complaint be reconsidered and expressed confidence in its compliance while remaining open to constructive dialogue.

The Panel’s assessment

The Panel considered whether the packaging communicated the drink’s alcoholic nature with absolute clarity as raised by the complainant. The Panel discussed the Portman Group’s accompanying guidance to Code rule 3.1 which stated that when determining whether the alcoholic nature of a drink had been communicated with absolute clarity regard would be given to a drink’s compliance with Regulation (EU) No 1169/2011 on the provision of food information to consumers and the UK Food Information Regulations 2014. However, the Panel also noted that guidance stipulated that compliance with the law would not be the only determining factor in judging compliance with the Code under rule 3.1. The Panel noted that packaging could still be found in breach of the Code under the absolute clarity requirement if, in the Panel’s view, it had the potential to mislead about its alcoholic nature or was likely to cause consumer confusion.

The Panel considered the packaging and noted that the bottle employed a novel design, with textured clear glass and a geometric pattern vertically displayed on one side. The Panel noted that aside from the vertical geometric design, there was nothing else printed on the bottle and it was void of any alcohol-related information on the glass. Instead, the Panel noted that the product’s alcohol health-related information only appeared on a swing tag which included signposting to the Drinkaware website, unit content information, pregnancy warning, the Chief Medical Officers’ Low-Risk Drinking Guidelines and a responsible drinking message. The Panel assessed the swing tag in more detail and noted that it was attached to the bottle with string and displayed a “to” and “from” inside which gave the impression it was a gift tag. The Panel discussed that if the drink was given as a gift, it was likely that the tag would be removed and discarded so that a consumer could peel off the protective plastic wrapper to open the product and that this was also compounded by the cultural assumption that most people would remove a gift tag before using a gift. Furthermore, the elasticated string meant that the swing tag could be easily pulled over the drink’s neck and as it was not securely fastened could easily be removed, intentionally or accidentally, in a home or retail environment. The Panel discussed two comparable precedent cases, Spiced Sugar Plum Light Up Snow Globe Gin Liqueur and Clementine Light Up Snow Globe Gin Liqueur, and noted that in its previous decisions it had concluded that swing tag labels which were easily removable could cause confusion as to the alcoholic nature of the drink if that information was not clearly repeated on the primary packaging.

With that in mind, the Panel then assessed the overall impression conveyed by the packaging. The Panel noted that the drink was sealed with a large cork stopper which had the words “Rum Liqueur” and “20% vol” printed on it. The Panel discussed that the text was embossed onto the golden lid in a light gold text colour and noted that the lack of contrast in the colours meant that it was difficult to read, was not particularly prominent and was not contrasting enough to catch someone’s attention. The Panel further noted that the lid of a drink was not in a field of vison a consumer would normally expect to find alcoholic cues. The Panel discussed that consumers would turn a product around to look at a product in the round when assessing its alcoholic nature but considered that the top and bottom of a product were not typically places where a consumer would expect to find important information regarding a product’s alcoholic nature and that this became more pertinent when a removable swing tag contained the only clear, positive alcohol cues.

The Panel discussed the complainant’s view that the product appeared to be an RTD tea but considered that there was no additional language on the product which supported this assertion or any flavouring that referenced tea. The Panel noted that if the swing tag were removed the overall impression conveyed was not one of any specific drink.

The Panel discussed the producer’s response and noted the producer’s point that the product was exclusively merchandised within the alcohol section, both in-store and online, which in the producer’s view enforced the product’s alcoholic nature. The Panel noted that the remit of the Code applied solely to product packaging, irrespective of how a product was retailed and considered that ultimately the product would end up in the home-environment as most products in the off-trade would. The Panel also discussed the view provided from Oxfordshire Trading Standards which formed part of the producer’s response. The Panel sought to remind producers that compliance with the law was not always indicative of compliance with Code rule 3.1 and the wording requirement of ‘absolute clarity’. The Panel encouraged producers to carefully consider how a product’s alcoholic nature was communicated and that the minimum requirements in law were not always sufficient under the Code when there was the possibility that a consumer could be misled as to a product’s alcoholic nature if important information was provided on a removable gift tag and further mandatory information was not clearly visible in an unconventional place. The Panel further noted that this position was consistent with precedent that had been established in previous cases regarding Spiced Sugar Plum Light Up Snow Globe Gin Liqueur and Clementine Light Up Snow Globe Gin Liqueur.

Taking this into account, the Panel concluded that in its view, the drink’s packaging did have the capacity to mislead as to the product’s alcoholic nature. The Panel considered that it was not sufficient to include the only clearly presented, positive alcohol cues on a removable swing tag that was likely to be removed after purchase or could be accidentally removed even prior to purchase. As established in previous precedent, the Panel noted that if a product incorporated a removable swing tag it should repeat important alcohol-related information on primary packaging in a clear and legible manner. However, in this case, the Panel noted that this mandatory information had been embossed in gold lettering, on a gold-cork lid which it considered was an unconventional place where consumers would not typically seek such important information and that this was not particularly distinguishable or visible in its presentation. Therefore, the Panel concluded that the product did not communicate its alcoholic nature with absolute clarity and accordingly upheld the complaint under Code rule 3.1.

Action by Company:

The product has been discontinued