Product:
Frosty Jack’s Cider
Producer:
Aston Manor
Final Decision:
16 July 2020
Considered under the 6th Edition of the Code.
Code Signatory:
Yes
Complainant:
Member of the public
Complaint summary:
“I would like to complain about the product produced by Aston Manor Brewery, Frosty Jack’s. I have seen this product on numerous supermarket shelves and feel like it has a great appeal to children and those under the age of 18.
As Frosty Jack’s is produced in 2.5L blue plastic bottles, this is very similar to existing soft drink brands including sprite, 7UP, which come in green plastic 2L bottles. It is hard to draw to mind and other alcoholic beverages that are sold in plastic bottles above the 1.5L size. Therefore, I would think that both 3.2(h) and 3.2(i) are in breach. These types of bottles would also be stacked in the same way in a personal fridge and children may get confused by the bright coloured plastic and the contents of what may be inside of the bottle. The fact the bottle is blue may be confused with “bubble gum” flavoured pop which is also blue or a range on isotonic drinks which are also blue.
The name Frosty Jack’s, I believe is also in breach of code 3.2(h) and 3.2(i), since Jack Frost has it roots deep in early 19th Century literature over the years the character Jack Frost has appeared generally as appealing to children and being friends with Santa Claus. He has appeared in video games marketed at children, children books, films and other literature children are especially exposed to in the autumn and winter months from a very early age. The character Jack Frost is well loved and rooted in children deep from an early age along with Santa, therefore it would not be surprising if any small child mistook “Frosty Jack’s” for a drink for Jack Frost aimed for children.
The rebranded has muted colours of white and grey that show scenes of snow, ice and a general winter feel, therefore a child may enjoy the scenery and feel like it is aimed at them or misconstrued the name “Frosty” as a thirst quenching drink to drink when it is particularly warm. Like any child would with an ice pop, or choc ice’s. (E.g Mr Freeze Jubbly Ice Lolly’s widely available) The image of Jack Frost also is associated with snow men that particularly appeal to children as a pastime.
Furthermore 3.2(f) I feel is also breached because 2.5L at 7.5% is quite a large quantity of alcohol for a single container and is mostly unseen in any other form, beer and spirits are in lower quantity containers.
There is also a great similarity with the apple on the logo and that of Apple Inc, who produce smartphones tablets etc, most teenagers will have access to these devices before they are 18. They are extremely similar and given the addiction of teens on technology it would be easy for a teen to think that this may be part of the same company.
Finally in relation to 3.2(f) the first page of search engines hazards newspaper reports of people who have binge drinked and have indulged in Frosty Jack’s cider setting the scene for a binge drinking culture around the brand.”
Decision:
Under Code rule 3.1(f)
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
NOT UPHELD
Under Code rule 3.1(h)
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 rule 3.1(j)
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 stated they were a responsible producer and outlined their commitments and investment in sustainability, corporate performance and social responsibility. They said they were members of the Portman Group, a supporter of Drinkaware and had committed to the Alcohol Education Trust until at least 2022.
The company said they had made changes to their product pack sizes, including changing the size of Frosty Jack’s from 3 litre to 2.5 litre, which had reduced the overall amount of alcohol consumed. They said they had invested considerable resources to encourage an informed and balanced debate around alcohol so that approaches were effective and proportionate. They highlighted independent studies they had funded to research the views of both frontline drug and alcohol workers and UK adults on the effectiveness of different approaches. They said the views expressed in both studies were that it would be a disservice to the small minority of those struggling with misuse to believe the simplicity of whole-population measure would address the complex and often personal reasons people misused a range of substances. The company said they supported that position.
Context of the ‘white cider’ category/consumer
The company stated white cider accounted for less than 4% of cider sales, less than 0.27% of total alcohol, and was in long-term decline.
The company said the media’s portrayal of the category and brand was inaccurate and given undue prominence: they believed white cider consumers were maligned without justification.
The stated 92% of white cider drinkers were employed and 79% had household income under £20,000 (‘just about managing’ families). They said these consumers had a repertoire of drinks that naturally included more value products, given their income. The company said white cider consumers spent more on spirit, beer and wine than they did on white cider and that, when they switched their white cider expenditure to other drinks categories, they tended to switch to higher-strength products such as spirits, wine and sparkling wine (in that order). They sent information generated from their own market data and research conducted for them by independent research agencies to support these figures.
The company argued there was nothing to point to white cider drinkers’ consumptions being excessive, and said more their more affluent neighbours would direct more of their consumption to higher strength products like wine.
The company addressed the complaint about similarity to soft drink brands. They stated packaging sizes were consistent for drinks whether they contained alcohol or not. The company explained that colour was added to the glass or plastic used for alcohol products because exposure to light could alter the taste and colour of the drink. They noted that, historically, different colours were used for different product categories and blue had been commonly used for cider packaging for decades. The company explained the colour served a practical purpose and, although modern production methods had lessened the need for coloured bottles, it was a commonly understood practice and was clearly not intended to mimic soft drinks or cause confusion.
The company responded to the complainant’s concern about ‘bubble gum flavoured pop’ and isotonic drinks; the company stated this was without foundation and the complainant had not objected to the fact that the product was clearly labelled as cider/alcohol. The company argued that ‘bubble gum’ flavoured drinks displayed that description very prominently and provided images of examples. The company stated it had been impossible to find a PET pack of an isotonic drink larger than 500ml.
The company argued that, because both the size and colour of packaging was associated with both alcoholic and soft drinks, what was at issue was whether the product made clear that it was an alcoholic product. They noted the complainant had not objected that the product failed to make clear its alcoholic nature.
The company responded to the complainant’s concern about the character Frosty Jack. The company stated no connection was ever made or implied between the product and Jack Frost. The company also stated that no imagery has ever been used in their packaging or marketing to characterise Frosty Jack, or Jack Frost. The company explained the connection between cider and ‘jack’ related to a distillation process called ‘apple jacking’, which involved very low temperatures, and they noted many cider brands included ‘jack’ references in their product names.
The company said the branding hinted at snow and ice and was an evident and legitimate reference to ‘apple jacking’ and the serving suggestion to ‘serve Frosty over ice’.
The company then addressed concerns around the strength of the product; the company stated the total numbers of units and CMO guidance were clearly provided, as wells as the number of units in a standard serving (half pint). The company highlighted it was a resealable pack and a quality product and argued there was no need to advise for it to be consumed within a specific period.
The company said the link to the Apple logo was barley credible, and the logo represented the largest ingredient of the product, apples. The company said it was legitimate, relevant and a positive image to have included on the product, and that it would be hard to find a cider product which did not use an apple in some form. The company also explained minimalism was a hallmark of Apple and has never been for Frosty Jack’s.
The company said there was nothing on the packaging, marketing or communication that suggested a binge drinking culture linked to the brand. The company said their internal compliance team reviewed their social media content to ensure they complied with rules and guidelines.
The Panel’s assessment
The Panel acknowledged that the complainant had cited rule 3.2(i) but they noted the packaging did not feature images of people of any age. They concluded that the product did not breach rule 3.2(i).
The Panel discussed whether the product had particular appeal to under-18s.
They first addressed the complainant’s concern about implicit links to the Jack Frost character and to Apple logos. The Panel noted the packaging did not feature a Jack Frost character. They found nothing on the packaging that resembled Apple (the technology company)’s branding and considered that it was entirely reasonable for cider products to reference apples in general.
The Panel debated the complainant’s wider concerns about the colour scheme and branding. They considered that the packaging was relatively plain and did not include high-contrast colours or illustrations likely to appeal to under-18s. They considered that blue packaging was not inherently problematic. Some Panel members could see a potential link to bubblegum colours but others argued that the packaging was not reminiscent of bubblegum or soft drink branding. The Panel agreed that the overall impression conveyed by the packaging did not have particular appeal to under-18s and concluded that the product did not breach rule 3.2(h).
The Panel gave careful consideration to the complainant’s concern that the product encouraged immoderate consumption. The Panel had regard to the Portman Group’s research on consumer perceptions of different types of alcohol container, conducted in 2019.
Panel members had experience of seeing vulnerable people with alcohol problems drinking white cider. The Panel acknowledged the wider cultural context around the product category including concerns that it was sold predominantly through convenience stores where vulnerable consumers, including street drinkers, were likely to buy alcohol. The Panel looked closely at the packaging to assess whether it encouraged immoderate consumption by either average or vulnerable consumers.
The Panel saw that the label included the unit content for the bottle and per serving. They considered that the product could more clearly promote sharing and responsible consumption, but noted that it did give consumers information about the recommended serving size.
The Panel noted the Guidance published by the Portman Group’s Advisory Service recommended that containers that were typically single-serve should not contain more than four units of alcohol. The Panel also referred to research commissioned by the Portman Group, which found that a large majority of consumers believed bottles containing more than 2 litres were designed to be shared and/or consumed over more than one sitting. The Panel discussed whether any elements of this product’s packaging would counteract consumers’ usual assumption that this type of product contained multiple servings or encourage them to drink excessive quantities in one sitting. The Panel found no elements of the product packaging that compelled or encouraged immoderate consumption.
The Panel concluded that the product did not breach rule 3.2(f).
Action by company:
None required