Final Decision: 7 March 2019
Considered under 5th Edition of the Code.
“We believe that the product – https://www.firebox.com/Unicorn-Tears-Gin-Liqueur/p6970 – could have a particularly [sic] appeal to under 18’s, contravening code 3.2H. The bottle size and shape is similar to that of a nail varnish bottle, the cartoon unicorn design and the sparkly baby pink colour of the liquid would appeal to children. The name “Unicorn tears” is also suggestive of children’s fiction”.
The Wine and Spirits Trade Association
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(h)
A drink, its packaging and any promotional material should not in any direct or indirect way have a particular appeal to under-18s.
The company’s submission
The company explained that Unicorn Tears Raspberry Gin Liqueur Miniature had been launched in response to the growing trend for pink gin. The company stated that Unicorn Tears Raspberry Gin Liqueur Miniature was indicative of a serious industry trend and with a 40% alcoholic strength by volume (abv) did not appeal to under-18s.
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 explained that the bottle shape was commonly used by other spirit brands and could not be mistaken for a nail varnish bottle. The company stated that the product clearly communicated its alcoholic nature with absolute clarity by clearly incorporating various alcoholic cues; according to the company:
- the words ‘Gin Liqueur’ appeared in black font on the front label;
- the figure 40% vol appeared in black font on the front label;
- the bottle was sealed with a cork which was typically associated with alcohol.
The Panel’s assessment
The Panel firstly 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 that pink gin had become a popular addition to the gin category in recent years. However, the Panel noted that the miniature product contained candurin to give the product a sparkly and shimmery appearance and this could create a strong level of appeal to young girls.
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.
The Panel discussed the appearance of the product and noted that on first impression, it was similar to a cosmetic product in style and shape. They were concerned that this may cause the product to have an appeal to teenage girls in particular.
When considering the overall impression conveyed by the product, including the unicorn logo, childlike typeface, sparkly pink liquid colour and cosmetic-like appearance of the bottle, 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 noted that the packaging had an unconventional shape for a miniature alcohol product and restated their view that innovative packaging needed to work harder to convey the alcoholic nature of the contents, particularly if there was a risk that it could appeal to under-18s. The Panel stressed that it was not its intention to stifle innovation in the industry and understood that the small size of the product meant that it was difficult to include positive alcoholic cues that one would typically associate with alcohol product packaging such as a clear box containing alcohol health-related information. The Panel further noted that Portman Group guidance stipulated that drinks containers with a volume of 50ml or below were exempt from featuring this type of information on the grounds of practicality.
The Panel considered the front of the packaging and noted that ‘Unicorn Tears’ was the most prominent text on the label, with the words ‘Gin Liqueur’ in smaller font below, and the product’s ABV in smaller font below that. The Panel agreed that the words ‘Gin Liqueur’ and the product’s ABV could have been communicated in larger text on the front of the label given that the product packaging was unconventional and was likely to have a particular appeal to under-18s. The Panel recognised that the product did include the EU labelling mandatory particulars but questioned whether these had been presented as clearly and legibly as possible. It was the view of the Panel that the product had the potential to cause consumer confusion as to its alcoholic nature and the Panel therefore did not believe that this had been communicated with absolute clarity within the spirit of the Code, particularly when considered alongside the unicorn logo, childlike typeface, sparkly pink liquid colour and cosmetic-like appearance. The Panel accordingly upheld the product under Code paragraph 3.1.
Action by Company
The Company has agreed to work with the Advisory Service to amend the product packaging.