Producer:
MixPixie
Complaint:
“I am contacting you about a worrying product which came up in an advert on my Facebook feed a few weeks ago and is still on sale.
https://www.notonthehighstreet.com/mixpixie/product/personalised-medicine-style-flavoured-gin?fbclid=IwAR0VlCi2AVLDtuxn7Mp5XsmdT84199wXBrJcjAFIhUnFdAvfh-bSF3pDV9g
My concern is that it just seems very wrong to make alcohol (or anything else!) resemble prescribed medication. And the suggestions on the labels to take alcohol when stressed and before each exam, completely against all the “responsible drinking” recommendations.
It also goes against Section 3.3 of the Portman Group’s rules, as found online (6th ed.):
“A drink, its packaging and any promotional material or activity should not in any direct or indirect way:
3.3 suggest that the product has therapeutic qualities, can enhance mental or physical capabilities, or change mood or behaviour.”
I also suspect there may well be legislation about using prescribed medication as a packaging for anything that is not actual prescribed medication.”
Complainant:
Member of the public
Decision:
Under Code paragraph 3.1
The alcoholic nature of a drink should be communicated on its packaging with absolute clarity.
NOT UPHELD
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.
NOT UPHELD
Under Code paragraph 3.2(f)
A drink, its 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.
UPHELD
Under Code paragraph 3.2(h)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way have a particular appeal to under-18s.
NOT UPHELD
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.
UPHELD
The company’s submission:
The company opened by stating that it appreciated the complainant’s misunderstandings, but that it disputed the points raised and wished to respond to the concerns.
The company addressed the concern raised by the complainant that one of the bottles featured on its website included the front label text ‘take one swig before each exam. Good luck!’. The company explained that the product was personalised and that this particular product had been ordered by a customer. The company explained that when a customer bought the product, they had to confirm that they were over 18 years of age. Additionally, the company pointed out that when Royal Mail delivered its products, they could not hand it to anyone under-18. The company then stated that the complainant had presumed that this particular bottle was for a young person doing exams, but that in reality, it was most likely that this order was for a mature student.
The company stated that to resolve this particular issue with the complaint, it had removed this photo from its product page.
The company then addressed the complainant’s concern that the product breached Code rules 3.2(f) and 3.2(j) and that it used a prescription medication label for the packaging. The company explained that nowhere on the label or in the promotional material did the product suggest any of these things and that the complainant had appeared to misunderstand the premise behind the label. The company reiterated that the product was personalised in its entirety and that customers had to fill out three aspects to personalise it: the ‘Patient name’ (i.e. the recipient’s name); ‘Dosage’ (i.e. birthday wishes); and ‘Authorised by’ (i.e. the customer’s name.) The company explained that when a customer added the product to their basket, they were asked to tick a checkbox which stated, “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS HUMOURED GIN. PLEASE DRINK RESPONSIBLY.”
The company stated that it did not accept that the product encouraged illegal, irresponsible, or immoderate consumption of alcohol. The company pointed out that in a similar way to other personalised alcoholic drinks on the market, it could not control what a customer included in the personalised text sections. However, the company stated that it took its alcohol licenses, and the responsibilities that they brought, very seriously, and if there were rare occasions where it felt that the personalised text was not appropriate then it would contact the customer to request they change it, or refund the order.
The company stated that to resolve the issues raised by the complainant, it had now added the text, “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS A HUMOURED GIN. PLEASE DRINK RESPONSIBLY.” as a checkbox which the customer had to check to be able to place the order and to the labels on the bottles, to ensure that both the purchaser and recipient of the gin could not be mistaken that the product was a real prescription. The company stated that it believed it was already very clear that the product was not a real prescription and that it had never received any complaints or queries from customers along the lines of what the complainant had suggested.
In response to the concern that the product breached Code rule 3.2(h), the company stated that it took its alcohol licences very seriously and that it found the suggestion it had broken this particular rule disappointing. The company provided a list of other companies selling alcoholic drinks with sparkles in. The company stated that it did not see how prescription gin which contained sparkles was any different to the products it had highlighted.
The company highlighted that the product clearly stated, “This product contains alcohol. By purchasing this product, you confirm that you are 18 years of age or over.”
Additionally, the company reiterated that its products were delivered through Royal Mail, who were required to check the age of the recipient before handing over the parcel, to ensure that they were over 18. Lastly, the company stated that it did not believe that the price of the product had an appeal to teenagers in any way. The company highlighted that the smallest bottles were £18 plus postage and packaging for 200ml. The company pointed out that most supermarkets sold gin in 70cl bottles.
In response to the Panel’s provisional decision, the company stated that it was its view that Code rules 3.2(f) and 3.2(j) had not been broken. The company reiterated that after being made aware of the complaint, the image featuring the ‘exams’ example had been taken off the website. Additionally, the text “POSSIBLE SIDE EFFECTS: MAY INCLUDE EXTREME RELAXATION, GIDDINESS AND HAPPINESS” had been replaced with “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS A HUMOURED GIN. PLEASE DRINK RESPONSIBLY.”
The company explained that it took its alcohol licence very seriously and that it had met with Trading Standards to ensure that no laws or rules had been breached with the product. The company stated that Trading Standards had approved the changes and that it was also waiting to hear from the Advertising Standards Authority to confirm compliance before any further changes were made to the product.
The Panel’s assessment:
The Panel began discussion by noting the customisable element of the product subject to complaint and discussed remit application. The Panel acknowledged that it could only assess the product subject to the actual complaint and that it was unable to assess hypothetical personalised elements that each product purchased could include. However, the Panel noted that while the product design enabled each one to be personalised, the production of the final label and packaging was fundamentally still within the control of the producer. The Panel discussed the producer’s formal response to the complaint and noted that the producer had stated that it could not be held responsible for what a customer chose to include but that it had the ability to ‘vet’ what had been written before sending the label to be printed and could contact the customer to change it or issue a refund if the proposed text was inappropriate for an alcoholic product. The Panel sought to remind the producer that it did have responsibility for the entirety of the product, including the customisable element, as ultimately the producer could regulate the customisable content. The Panel noted that once the producer chose to incorporate the customer’s personalisation on the product, the product in its entirety became the responsibility of the producer as it had willingly, and knowingly, printed the label onto its branded product.
Code rule 3.1
The Panel considered whether the product communicated its alcoholic nature with absolute clarity. The Panel noted that the bottle referenced gin six times and that the label also stated the alcoholic strength of the product at ‘18% vol’[1]. The Panel then considered the word ‘prescription’ in relation to ‘gin’ on the front of the bottle. The Panel discussed whether the word ‘prescription’ could cause consumer confusion if an individual considered that the product was a prescription drink, as opposed to an alcoholic drink. The Panel also considered that the dark colour of the liquid looked like a medicinal liquid, rather than a gin. In addition to this, the Panel noted that the product did not include any best practice alcohol health-related information such as the product’s unit content, a pregnancy warning or the Chief Medical Officers’ Low Risk Drinking Guidelines but acknowledged that this was not a Code requirement. The Panel discussed Portman Group guidance under rule 3.1 which stated that it was reasonable to expect a consumer to pick a product up and assess it in its entirety. The Panel therefore considered that whilst the prescription element of the product could cause confusion at first glance, the inclusion of the product’s ABV and six clear references to gin were sufficient for a consumer to conclude that the product was alcoholic. Accordingly, the Panel found that the product met the minimum requirement to communicate its alcoholic nature with absolute clarity and did not breach rule 3.1.
Code rule 3.2(f)
The Panel then discussed whether the product encouraged irresponsible, immoderate or illegal consumption of alcohol. The Panel considered the standard wording of ‘dosage’ on the product and the additional customisable element alongside this which read, “Take ONE swig before each exam. GOOD LUCK!” The Panel expressed concern about encouraging anyone to drink before an exam given the potential effect and impairment it could have on the outcome of an assessment. The Panel also considered the word ‘swig’ in relation to a measurement of alcohol and noted that due to its imprecise nature this could result in varying levels of alcohol consumption. The Panel also noted that an ‘exam’ could encapsulate practical tests, whether this be a driving test, an exam involving heavy machinery or even a practical medical exam. The Panel therefore considered that the encouragement of alcohol consumption before an exam created a direct association with irresponsible consumption.
The Panel considered the design of the bottle and discussed the shape of the bottle and the name ‘prescription gin’ which resembled a prescription medicine bottle. The Panel noted that the green cross displayed on the front of the bottle was an exact replica of a pharmacy cross in the UK which also appeared on most prescription medication. The Panel considered that it was irresponsible to imply that an alcoholic drink was something to be prescribed and constituted an ‘order to drink’ in order to make an individual feel ‘better’ which also created a link with irresponsible consumption.
The Panel also noted that the front label included the warning ‘possible side effects’ one of which was ‘giddiness.’ The Panel acknowledged that the paragraph was followed by the phrase ‘Please drink responsibly’ but considered that this did not offset the overall impression conveyed by the product. The Panel noted that if a consumer experienced ‘giddiness’ then it implied that a certain amount of alcohol had been consumed to have an intoxicating effect. The Panel therefore concluded that the product also encouraged immoderate consumption of alcohol. Taking the above points into account, the Panel concluded that the product breached rule 3.2(f) as it encouraged irresponsible and immoderate consumption.
Code rule 3.2(j)
The Panel then discussed whether the product suggested that it had therapeutic qualities, could enhance mental or physical capabilities, or change mood or behaviour. The Panel considered that the product was deliberately, and overtly, designed to look like a prescription medicine and that such medicines were synonymous with being used to cure and relieve physical and/or mental ailments. The Panel reiterated the points made during discussion under other Code rules and noted the usage of the exact replica of a pharmacy cross, small medicinal bottle shape and medicinal liquid colour which, when combined, suggested that the product had therapeutic qualities. The Panel also noted that the front of the bottle stated, “POSSIBLE SIDE EFFECTS: MAY INCLUDE EXTREME RELAXATION, GIDDINESS AND HAPPINESS.” The Panel considered that this directly suggested that the product could help a consumer to relax and that it would also result in happiness after consumption. The Panel considered that these phrases also suggested that the product had a therapeutic effect and that it could change someone’s mood. The Panel therefore concluded that the product breached rule 3.2(j).
Code rule 3.2(b)
The Panel then discussed whether the product created an association with dangerous behaviour because of its similarity to prescription medication which could lead to dangerous consumption of alcohol. The Panel discussed the point that it was irresponsible to encourage an individual to drink before any kind of exam as it could lead to dangerous behaviour, particularly in a practical exam. Additionally, the Panel reiterated its earlier point that prescribing alcohol, and therefore ‘ordering’ someone to drink under the pretence that it was good for them, could also lead to dangerous consumption. However, after in-depth discussion, the Panel considered that these points were more accurately captured by the ‘irresponsible consumption’ aspect of rule 3.2(f) and did not necessarily create an association with dangerous behaviour. The Panel therefore concluded that the product did not breach 3.2(b).
Code rule 3.2(h)
The Chair explained that during the Informal Resolution process she had noted that the bottle was 200ml and contained sparkles. The Chair explained that as part of the Informal Resolution review she had raised rule 3.2(h) for consideration as it was her view that the product could appear toy-like and therefore warranted further discussion as to whether it had a particular appeal to under-18s.
The Panel noted the producer’s formal response which explained that the product was delivered via Royal Mail and that the product would not be delivered to a person who the postal worker deemed to be under-18. However, the Panel agreed that this was not a factor that could form part of its considerations as its review focused on the naming, packaging and promotion of the product which could still end up in a home environment and be seen by anyone. The Panel also noted that a product could still have a particular appeal to under-18s, even if all delivery safeguards had been utilised, because the decision was fundamentally about the overall impression conveyed by the product’s name, packaging and promotion.
The Panel then discussed the sparkles and noted that they were a similar colour to the liquid, which made it difficult to easily distinguish them. The Panel also noted that given the large size of the sparkles, they fell to the bottom of the bottle quite quickly and did not stay afloat for very long once shaken. The Panel discussed recent precedent of similar products that also incorporated ‘sparkles’, such as the Marks and Spencer Snow Globe Gins, and noted that sparkles alone were not necessarily problematic under the Code. The Panel then examined the rest of the bottle and noted that the sparkles were not the dominant feature of the product. The Panel also noted that there was nothing further on the packaging which could create a particular appeal to under-18s such as childish imagery, sweet flavours, contrast colours or childish font. The Panel then considered the 200ml size of the bottle in combination with the sparkle element. The Panel considered that the bottle shape was designed to appear like an old-fashioned medicine bottle and that this would be unlikely to resonate with under-18s as it did not appear particularly toy-like. The Panel therefore concluded that the product did not breach rule 3.2(h).
The Panel discussed the company’s response to the provisional decision. The Panel noted that the company had taken steps to address the complaint by removing the image of the product that was subject to complaint off the Not on the High Street website and that the ‘side effects’ text on each product had been changed to: “PLEASE NOTE THAT THESE ARE NOT REAL PRESCRIPTIONS, THEY ARE SPOOF LABELS INTENDED AS HUMOURED GIN. PLEASE DRINK RESPONSIBLY.” However, the Panel noted that its consideration was against the product version subject to complaint and not the amended product. The Panel welcomed the company’s response to engage with the complaints process and its efforts to amend the product. However, after discussion, the Panel also noted that the producer had not provided an image of the new product or any new evidence or additional reasoning to change the Panel’s provisional upheld decision that the product breached Code rules 3.2(f) and 3.2(j).
Finally, the Panel noted that the company had met with Trading Standards to discuss the product but that no evidence of the meeting or correspondence had been shared with the Panel. The Panel also noted that Trading Standards advice would have related to compliance with applicable laws and would not have related to the Portman Group’s Code of Practice on the Naming, Packaging and Promotion of Alcoholic Drinks which fell outside of Trading Standards remit. The Panel reiterated that the Code sat alongside the law and that its rules were to be adhered to in addition to legal requirements.
In summary of the above, the Panel concluded that the product breached Code rules 3.2(f) and 3.2(j). The Panel also concluded that the product did not breach Code rules 3.1, 3.2(b), 3.2(h) or any other part of the Code.
Action by company:
To be confirmed.
[1] The Panel noted that it was not within its remit to consider whether the product was misleading.