‘… Tinyfast is questionable as well in its use of SlimFast’s branding to associate itself, even subconsciously, with health benefits, violating rule 3.2(j).’
Member of the public
‘The branding of these products is designed to mislead, they are clear facsimiles of popular other products that are very obviously not alcoholic, the risk to the public is high (underage alcohol sales (energy drinks), identifying with health products (… slimfast)) due to the intentional duplication of branding, colours & typeface’
Member of the public
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(e)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest that consumption of the drink can lead to social success or popularity.
Under Code paragraph 3.2(f)
A drink, it’s packaging and any promotional material or activity should not in any direct or indirect way encourage illegal, irresponsible or immoderate consumption, such as drink driving, binge drinking or drunkenness.
Under Code paragraph 3.2(g)
A drink, its packaging or promotion should not urge the consumer to drink rapidly or to ‘down’ a product in one.
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).
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 did not submit a response to the complaint.
The Panel’s Assessment
Code Rule 3.1
The Panel considered the packaging of TinyFast and noted that the can had a significant resemblance to a SlimFast Strawberry Meal Shake, which did not contain alcohol, including a similar style of iconography, imagery, colour palette and name. Due to the similarity between the alcoholic drink and a non-alcoholic meal shake, the Panel raised Code rule 3.1 for discussion and considered whether some consumers would struggle to identify the alcoholic nature of TinyFast.
The Panel assessed the packaging and noted that the can included the descriptor ‘Strawberry Milkshake IPA’ and the product’s alcoholic strength by volume (ABV) on the front label. The Panel noted that the descriptor ‘IPA’ had been partly considered in a previous decision regarding ‘Easy IPA’. The ‘Easy IPA’ decision had set a precedent which established that while some consumers may be unfamiliar with the term ‘Session IPA’, a product’s overall impression should be considered when determining whether a product communicated its alcoholic nature with absolute clarity. The Panel reviewed the TinyFast back label and noted that it included multiple positive alcohol references to ‘beer’, ‘brewed’, a pregnancy warning logo, the product’s 5.8 % ABV and unit content. After considering the label in its entirety, the Panel concluded that there was sufficient information to communicate the drink’s alcoholic nature with absolute clarity, despite its similarity with a non-alcoholic drink. Accordingly, the Panel did not uphold the complaint under Code rule 3.1.
Code Rule 3.2(e)
During discussion, the Panel noted that text on the back of the packaging stated ‘We’re on a mission to bring you goods times with a hint of beer. We do this by creating brands that will capture your imagination and defy your senses’ and raised Code rule 3.2(e) for discussion. After careful consideration, the Panel considered that the context of the line was clear, and purposely linked the referenced ‘good times’ to the brand’s imagination, rather than linking consumption of the product to social success or popularity. Accordingly, the complaint was not upheld under Code rule 3.2(e).
Code Rule 3.2(j)
The Panel discussed whether the packaging suggested, directly or indirectly, that the drink had therapeutic qualities, could enhance mental or physical capabilities, or change mood or behaviour. The Panel considered that the packaging of TinyFast was a facsimile of a SlimFast Strawberry Meal Shake with the label intentionally mimicking the branding and flavour. The Panel noted that SlimFast was a well-known adult meal replacement drink that was used by consumers to aid in weight loss, or to help maintain a healthy weight. The Panel considered that as the SlimFast brand was synonymous with a health drink, the average consumer could consider that TinyFast with its near identical branding, and name, indirectly implied the drink shared the same weight loss properties. The Panel also noted that this association was particularly problematic in the context that some beers were considered fattening.
While the Panel acknowledged that the packaging of TinyFast did not include any direct health claims, the product descriptor text on the company’s web page included the line ‘Our ‘Cos Jan’s Bad Enough Beers are all made with love and fun to help chase away the January blues..’. The Panel also noted that the product had been launched as part of a wider range in January, a month that in recent years had become linked to health goals and giving up certain products or types of food and drink. The Panel considered that the product’s marketing reinforced the perception that consumption of the drink could help change a consumer’s mood to chase away the January blues, and that the drink indirectly suggested that it had a therapeutic quality. In addition to this, the Panel also considered that the product’s mimicry of SlimFast meant that the product’s packaging indirectly implied it could change mood and behaviour by enabling consumers to make better dietary choices and lose weight more successfully than they would otherwise be able to. Accordingly, the Panel upheld the complaint under Code rule 3.2(j).
Code Rule 3.2(f)
In the context that the packaging suggested the product had weight loss properties, and was mimicking a meal replacement drink, the Panel then considered whether there was anything on the packaging of TinyFast which could encourage a consumer to drink irresponsibly as raised by the complainant. The Panel considered the complainants’ wording carefully and noted that complainant two was concerned that the product was designed to mislead and had raised Code rule 3.2(f) which included the wording ‘irresponsible consumption’. The Panel assessed the packaging in its entirety and considered that it was socially irresponsible for an alcoholic drink to create an association with a health product known for being a meal replacement. After careful consideration of the Code rule 3.2(f) wording, and in the context of its decision under Code rule 3.2(j), the Panel considered that if a consumer believed that the product was a meal replacement, or had weight loss properties, this could indirectly encourage a consumer to drink it to excess in order to gain the inferred health benefits of the product. The Panel considered that a consumer may then base their alcohol consumption on the purported health benefits of the product, as opposed to making an informed consumption choice based on the amount of alcohol in the product and this, the Panel concluded, could reasonably lead to irresponsible consumption as a consumer might consume more than they otherwise would have done. Accordingly, the Panel upheld the complaint under Code rule 3.2(f).
As part of the discussion about whether the product indirectly encouraged irresponsible consumption, the name ‘TinyFast’ was discussed from the perspective that it may encourage ‘fast’ consumption. The Panel considered that the word ‘fast’ in the product name created a link to a style of consumption and encouraged a consumer to drink the product rapidly. Accordingly, the Panel also upheld the product under Code rule 3.2(g).
Finally, the Panel considered whether the can had a particular appeal to under-18s. The Panel discussed that while there were similarities between the packaging of TinyFast and a SlimFast Strawberry Meal Shake, which was targeted at an adult audience, young children were unlikely to be aware of the similarities between the two brands. In that context, the Panel considered the overall impression conveyed by TinyFast and noted that it included the image of a strawberry milkshake, strawberry fruit, the text ‘strawberry flavour’ and the descriptor ‘Strawberry Milkshake’ which was positioned above ‘IPA’ and the drink’s ABV. The Panel discussed the positioning of a beer as a milkshake and noted that a ‘milkshake IPA’ was known in the industry as referencing an IPA brewed with lactose and was likely to be understood by beer consumers. Alongside this, the Panel also noted that a strawberry milkshake, as a non-alcoholic sweet beverage, was likely to have appeal to under-18s and that there were multiple strawberry milkshake products designed specifically for children. The Panel noted that in this instance the front label included an image of a milkshake with dripping sides and strawberry fruit depicted in an illustrated style, which it considered, in combination with the above points, was likely to appeal to children.
The Panel then discussed the company’s corporate bear logo and noted previous case precedents that reviewed its compliance under the Code (Cali Pale, Bump n’ Grind, Cherry Bomb, Clwb Tropica, Clwb Tropica Four Pack, Double 99, No Capes, Original Nuttah 2021). The Panel discussed that while the bear did not necessarily breach the Code in itself, it had the potential to appeal to under-18s depending on its size, presentation and contextual appearance.
When considering the bear logo on the front of the can, in the context of a strawberry milkshake flavoured drink, with product artwork that made the strawberry milkshake a dominant theme of the packaging, the Panel concluded that the overall impression conveyed was likely to have a particular appeal to under-18s. Accordingly, the complaint was upheld under Code rule 3.2(h).
Action by Company:
To be confirmed.