Producer:
Aldi Stores
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 Reprobates’ seems to glamourise illegal behaviour with its name, accompanied by a mugshot image. The bottle neck also carries an image of a cross-bar gate – an image clearly associated with counting days in prison.
The adult male depicted does not clearly appear to be over the age of 25 and is more likely around 18-20 years of age”.
Decision:
Under Code paragraph 3.2(b)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with bravado, or with violent, aggressive, dangerous, anti-social or illegal behaviour.
UPHELD
Under Code paragraph 3.2(i)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way incorporate images of people who are, or look as if they are, under 25 years of age, where there is any suggestion that they are drinking alcohol, or they are featured in a significant role. Images may be shown where people appear only in an incidental context.
NOT UPHELD
The company’s submission
The company welcomed the opportunity to respond to the complaint and stated that it did not believe that The Reprobates Sparkling Wine was in breach of the Portman Group’s Code of Practice.
The company explained that the term ‘reprobates’ was used in a light-hearted context and referred to mischievous individuals rather than illegal behaviour. The company stated that the term ‘reprobates’ was similar to ‘rascal,’ a word which had been deemed acceptable by the Panel in a previous decision, Wolfie’s Whisky. Therefore, the company did not consider that ‘reprobates’ created a direct link to illegal behaviour or violence and stated that similar names were commonly used in the alcohol industry.
The company explained that the imagery used on the packaging was an adult male with a neutral expression standing still and did not create any association with bravado or dangerous, anti-social or illegal behaviour. The image was representative of a caricature, depicting an everyday working-class man in 1920s dress which at most could be seen to be a ‘rascal’. The company explained that the historical context of the image depicted what would have been considered a reprobate in the 1920s which was important as that was not necessarily what would be considered a reprobate today, much less a criminal. The company refuted that the image was a ‘mugshot’ as there were no visual cues suggesting that was the case and it was simply a representation of an everyday working-class adult male from the 1920s holding a sign with the product name superimposed over it. The company explained that the image was created using artificial intelligence (AI) and was not a real photo nor a mugshot and there was no suggestion that the character was intoxicated.
The company explained that the written and visual communication on the packaging was adult in nature and that it understood that Code rule 3.2(i) was intended to protect under-18s from being exposed to images in alcohol marketing of people with whom they might identify or aspire to be like. The company stated that it did not believe that the character looked under-25. The character was clearly adult with a strong bone structure, broad shoulders and while clean shaven, there were no visual clues that suggested he was younger. Furthermore, the image did not represent an individual that under-18s would find aspirational, particularly given the dated and monotone nature of the image.
The company stated that the historical nature of the image was important to consider, as someone in old fashion dress was more likely to be associated with the style of an older generation. This was in contrast to how young adults were typically depicted today with an emphasis on being casual, trendy and youthful; a standard the character did not meet. The company stated that age recognition relied on visual cues such as clothing, hairstyle and overall demeanour and the cues on the packaging were vastly different to those of today. As such, consumers would not consider the image to be a young man under 25 and instead would associate the image with a representation of an adult male from a bygone era.
The company stated it was committed to the responsible retail of alcohol and complied with alcohol marketing guidelines. The products were exclusively sold in Aldi stores, ensuring they were not marketed to under-18s and the company employed a challenge 25 policy for the sale of alcoholic beverages to prevent underage sales.
The company’s response to the provisional decision
The company stated that it was disappointed with the Panel’s provisional decision as there were similar products on the market which could be interpreted as celebrating criminal activity.
The company disagreed with the Panel’s assertion that the tally marks on the neck of the bottle represented years of a custodial sentence and the implication that this conveyed a serious crime had been committed. Instead, the company highlighted that the tally marks, which were placed on the cap of the bottle’s neck, were far enough removed from the main image on the bottle which meant that it was unlikely consumers would infer an association between the tally marks and what the Panel had inferred was a ‘mugshot’. Furthermore, the company stated that even if the tally marks did represent a custodial sentence, such marks would more commonly represent days, rather than years, which the Panel had not considered. As such, the company disagreed with the Panel’s findings that the tally marks indicated a serious crime had been committed and subsequently warranted a long prison sentence. The company highlighted that in this context, the tally marks were more likely to represent a number of days which was indicative of a minor misdemeanour. The company stated that this interpretation aligned with the meaning of the name ‘Reprobate,’ which the Panel had deemed acceptable in its provisional decision. The company argued that even if the tally marks on the packaging had represented months or years, this still did not necessarily indicate a serious crime had been committed in modern society as crimes such as vagrancy and poaching had historically carried custodial sentences.
The company reiterated that other features of the packaging were consistent with similar brands. The company stated that if the Panel chose to uphold the complaint it presumed that the removal of the tally lines would be enough to ensure compliance with the Code. Nonetheless, the company requested the Panel to reconsider its decision.
The Panel’s assessment
3.2(b)
The Panel discussed whether the drink’s packaging created any association with illegal behaviour as raised by the complainant. The Panel first discussed the name, ‘The Reprobates’, to determine how the term reprobate was likely to be understood by UK consumers. The Panel noted the producer’s response that ‘reprobate’ was intended to be akin to ‘rascal’, a word that had previously been found to be acceptable by the Panel under the Code. The Panel considered that in contemporary meaning, ‘reprobate’ was often used in a light-hearted fashion to refer to a person who was mischievous or cheeky rather than as a reference to a criminal. The Panel acknowledged that ‘reprobate’ could be used to reference someone lacking in principles but stated that this did not inherently create an association with criminal or illegal behaviour. As the brand name was acceptable in isolation, the Panel considered that compliance under the Code would be dependent on the overall impression conveyed by the product.
The Panel discussed the front label, which included a photo of a man dressed in 1930s attire holding up a board which read ‘The Reprobates’. The Panel considered the positioning of the man in the photo, staring straight ahead while holding a board, which did appear to be very similar to the classic ‘mug shot’ position. This interpretation was compounded by the serious expression and rigid stance the character maintained as opposed to how one might usually pose for a photograph with a smile and relaxed posture. Furthermore, directly above the image on the neck of the bottle was the inclusion of numerous lines presented as a tally which was designed to mimic the appearance of carvings. The Panel considered that tallies were often used in the context of a prisoner counting the number of years they had served in prison, typically crudely etched onto a wall or other surface. The Panel noted that such tallies were synonymous with prisoners who were serving lengthy sentences for serious crimes as a way to keep track of passing time.
The Panel considered the name ‘The Reprobates’ within the context of a mugshot and prison tally count and considered that a brand name which insinuated that a person lacked principles reinforced the impression that the character had engaged in illegal behaviour.
The Panel considered the presentation of the product and noted from the producer’s response that the imagery had no contemporary relevance. The Panel discussed accompanying guidance to Code rule 3.2(b) and noted that it advised against glamourising crime which linked to contemporary illegal behaviour. The Panel further noted that guidance stated that the severity of crime depicted or referenced could also impact how ‘illegal behaviour’ may be applied under the Code by the Panel.
The Panel carefully considered the cumulative impact of how criminal behaviour was portrayed on the product packaging and noted that it did not glamourise contemporary illegal behaviour. However, the Panel acknowledged that while contemporary crime was not necessarily glamourised by the packaging, a clear and dominant association with illegal behaviour had been created through the name and imagery which had resulted in what appeared to be a fairly lengthy prison sentence, therefore inferring that a serious crime had been committed.
The Panel’s consideration of the company’s response to the provisional decision
The Panel considered the company’s response carefully and noted that it primarily focused on other producer marketing in the category and the assertion that the tally marks did not represent a custodial sentence, and that even if they were construed as such, did not necessarily suggest that a serious crime had been committed.
The Panel discussed the company’s concerns regarding similar products which were available in the UK market and the assumption that these were approved by the Portman Group. The Panel stated that it could only consider the merits of the case subject to complaint and highlighted that it had not made a formal decision regarding other products that the company had raised in its response. As the final arbiter of the Code, the Panel would only consider the case against The Reprobates Sparkling Wine and could not provide advice on any changes that may be required to comply with its decision as this was the responsibility of the Portman Group’s Advisory Service.
The Panel discussed the company’s response regarding the product packaging and noted that the company had concluded that ‘the name and image on the bottle had been deemed acceptable by the Portman Group’ which had led it to focus its response on the tally marks which it perceived had tipped the balance of compliance and resulted in an upheld complaint. However, the Panel considered that this fundamentally did not address the concerns it had raised in terms of the overall impression conveyed by the product and noted that the provisional decision did not explicitly state that the tally marks were the only problematic element on the packaging. The Panel highlighted that the provisional decision had stated that the name ‘The Reprobates’ within the context of a mugshot and prison tally count, and a brand name which insinuated that a person lacked principles, reinforced the impression that the character had engaged in illegal behaviour.
In addition to this, the Panel noted that the company had denied that the tally marks were intended to refer to a custodial sentence but equally noted that it had not offered any explanation as to what they were intended to represent nor why they had been included on the packaging.
The Panel then considered the latter half of the company’s response which stated that even if the tally lines were representative of a custodial sentence, a consumer would not interpret them in such a way as they were detached from the main imagery on the label. The Panel discussed this point and considered that as the tally marks and mugshot style image were in the same field of vision, an average consumer would make the brand narrative link between an image of a person being incarcerated and a symbol of passing time in prison; both directly linking to criminal behaviour. The Panel considered that this was the dominant impression conveyed in the absence of any other story-telling cues on pack.
Finally, the Panel then considered the company’s response that if the tally lines were representative of a prison sentence the lines did not necessarily infer a serious crime had been committed as they could represent days or weeks in line with a sentence for a minor misdemeanour which was in keeping with the name ‘The Reprobates’. Taking into account the points made above, the Panel reiterated that the tally lines compounded the impression that the character, who was presented in a mug shot style image, had been convicted of a crime and was counting down the time until release or a period of time served in prison. Therefore, regardless of the specific period conveyed, the impression was still one that the character had been convicted of a crime that was serious enough to warrant a custodial sentence.
Taking the above points into account, the Panel concluded that the overall impression conveyed by the drink’s name, a mugshot style image and number tally which inferred that a sufficiently serious, if unspecified, crime had been committed to warrant a custodial sentence, created a direct and dominant association with illegal behaviour. The Panel considered that as there was no other brand narrative to contradict these points, or any alternative explanation offered by the company, it was reasonable to conclude that a consumer would interpret the labelling in this manner. Accordingly, the complaint was upheld under Code rule 3.2(b).
3.2(i)
The Panel considered whether the packaging featured in a significant role an image of a person who was, or looked as if they were, under 25 years of age, as raised by the complainant. The Panel first assessed the image of the man and noted that while his age appeared to be somewhat indeterminate, the historical clothing did mean that he was presented in a mature manner. The Panel considered that the spirit of Code rule 3.2(i) was intended to protect under-18s from being exposed to images in alcohol marketing of people with whom they might identify or aspire to be like and that this had been applied by the Panel in previous cases considered under the Code. With that in mind, the Panel considered that the character’s clothing was distinctly different from contemporary fashionable attire and that the character’s style was largely obscured by the presentation of the label. The Panel considered that there was nothing else on the packaging that referenced modern youth culture and further determined that the man was not presented in a way that would be particularly aspirational to under-18s. On that basis, the Panel concluded that the packaging did not incorporate an image of a person who was, or looked as if they were, under 25 years of age and accordingly the complaint was not upheld under 3.2(i).
Action by Company:
Product discontinued