Final Decision: 7 March 2019
Considered under 5th Edition of the Code.
“The attached gin liqueur beverages are on sale in John Lewis at Home (Newbury). The images appeal to children and they are on a low display stand – i.e. at child level. I believe they are in breach of the code”.
Member of the public
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material should not in any direct or indirect way have a particular appeal to under-18s.
Under Code paragraph 3.2(j)
A drink, its packaging and any promotional material should not in any direct or indirect way suggest that the product has therapeutic qualities or can enhance mental or physical capabilities.
The company’s submission
The company explained that Unicorn Tears Gin Liqueur had been available since 2015 and was available for purchase in high-end department stores such as Selfridges, Harvey Nichols and John Lewis and had never received any previous complaints. The company stated that Unicorn Tears Gin Liqueur was part of its premium spirits range with a 40% alcoholic strength by volume (abv) and a high-end price point of £40 RRP. The company stated that although fantastical in design, the product was a high-quality juniper gin with 10 botanicals and a small amount of added sugar; although from 2019 onwards this would be removed and would become a ‘Gin’ only.
The company then addressed the complainant’s assertion that the product had a particular appeal to under-18s. The company explained that the product design employed a simple black colour print and did not use a colour scheme that could be misconstrued as appealing to under-18s. In the context of a product with a premium price point and positioned in the adult spirits category, the company did not believe that the product was in breach of the Code.
The company then addressed the illustration of the unicorn on the front label and stated that unicorns were legendary, mythical creatures that have been present in fiction for over 3,000 years. The company explained that unicorns were once considered real by the Ancient Greeks, featuring in natural history books and religious texts and have remained intriguing to people throughout history; from the Medieval period to the Renaissance and from Western art and culture to Chinese mythology. The company explained that, as well as being steeped in lore and fiction, unicorns were also the national animal of Scotland and a symbol of diversity and could not be said to have a particular appeal to under-18s.
The company stated that its success had led to a number of ‘inspired’ products in the industry, some of which incorporated a unicorn as part of their naming and packaging and shared these examples with the Panel.
The company asserted that there was no possibility that the product could be confused with a soft drink or non-alcoholic product. The company stated that the product clearly communicated its alcoholic nature with absolute clarity by clearly incorporating various alcoholic cues on the front and back label; according to the company:
- the words ‘Gin Liqueur’ appeared in large black font on the front label;
- the figure 40% vol appeared in black font on the front label;
- the back label included relevant regulatory information such as the UK pregnancy warning, unit content of the container and the old UK Chief Medical Officers’ (CMO) daily unit guidelines.
In response to the complainant’s assertion that the product was inappropriately placed in John Lewis, the company explained that it could not control how its products were merchandised and therefore did not believe that this element of the complaint was subject to the Code. The company expressed disappointment that the complainant’s concerns seemed to be primarily aimed at John Lewis’ placement of the product and less about the product packaging. Despite this, the company explained that they had taken steps to encourage responsible retailing and had created a retailer advisory pack to help explain how the product should be positioned within retail environments.
As part of the company’s response to the provisional decision, they refuted the Panel’s finding that the product could have a particular appeal to under-18s. The company submitted consumer purchase data for its range of products available online. The data revealed that the majority of customers were above the age of 25, and over 60% were older than the age of 30. The company stated that the data demonstrated that the product therefore appealed to an older consumer base and did not have a particular appeal to a younger age group or even an appeal to those below the legal purchase age.
The company explained that it had always positioned the product as one that was adult and mature. The company reiterated its point that unicorns are entrenched in myth and not an exclusive emblem for young children.
The company contested the Panel’s point that the word ‘mythical’, or any other part of the back-label text, suggested that the product had therapeutic qualities or could enhance mental or physical capabilities.
The Panel’s assessment
The Panel first considered the overall impression conveyed by the product packaging. The Panel noted that the product communicated its alcoholic nature with absolute clarity by virtue of the clear display of the words ‘Gin Liqueur’ in bold black font on the front label along with the ABV. In addition to this, the back label contained the unit content of the bottle, pregnancy logo, the UK CMO’s daily unit guidelines and a tailored responsible drinking message. The Panel also noted that the bottle shape was fairly traditional in design for a spirit and had a cork stopper, which helped contribute towards the product’s positive alcoholic cues.
The Panel then considered whether the product had a particular appeal to under-18s. The Panel discussed the inclusion of unicorn imagery on an alcoholic product and acknowledged the producer’s point that such imagery could hold a broad appeal for all age groups, given their symbolism. The Panel considered the examples the company had provided of similar products but noted that those images were more representative of sophisticated fantasy artwork.
The Panel acknowledged the company’s point that the product label utilised a black line drawing style but noted the illustration of the unicorn had the appearance of a child’s drawing and would not be out of place as a logo on a child’s toy, in a colouring book, or on an item of children’s clothing. The Panel noted that the thick black uneven typeface below the unicorn illustration further compounded this childlike presentation. The Panel reflected on the illustration and typeface in the context of previous expert opinion that it had received in 2015 which had highlighted bold black lines as a potential marketing tool sometimes employed by marketers to appeal to children. The Panel acknowledged that the use of black lines was not in itself problematic, but it was important to recognise that its use may resonate with young children when used in combination with other childlike design elements. When considering the overall impression conveyed by the product, including the unicorn logo and childlike typeface, the Panel considered that the product did have a particular appeal to under-18s and accordingly upheld the product under Code Rule 3.2(h).
The Panel considered the text on the back label which included the phrases ‘to unleash their magical powers: swirl the bottle, behold its shimmering majesty’ and ‘consume the mythical spirit’. The Panel discussed the meaning behind these lines in the context of the overall impression conveyed by the product and concluded that while the line ‘to unleash their magical powers: swirl the bottle, behold its shimmering majesty’ was being used in reference to the shimmer of the liquid, the phrase ‘consume the mythical spirit’ directly linked magical properties to consumption of the product, which was also reinforced by the statement ‘please enjoy the magic responsibly’, and accordingly upheld the product under Code Rule 3.2(j).
The Panel noted that the back of the label also included an amended UK CMO daily unit guideline message which included the text ‘Centaurs – 1-2 units a day’. While the Panel did not believe this was in breach of the Code, they agreed that this was not in the Spirit of the Code and subverted serious messaging.
The Panel discussed the company’s response in relation to the price and placement of the product but noted that these elements were not in the remit of the Code. However, the Panel did welcome the news that the company had created a retailer advisory pack to assist retailers in the responsible merchandising of their products.
Finally, the Panel considered the data and points made by the company in response to the provisional decision. The Panel did not agree that purchasing data was indicative of a product’s appeal, as the label could still hold a particular appeal to an under-18 regardless of who purchased it. The Panel acknowledged the company’s points that they had not intended to position the product as anything other than an adult product but considered that however inadvertent the breach was, it was still in breach of Code Rule 3.2(h).
Action by Company
The Company has agreed to work with the Advisory Service to amend the product packaging.