Company:
United Dutch Breweries (ODB)
Company: Lost and Grounded Brewers Ltd
Last known importer: Oranjeboom UK Ltd (OUK)
Breach:
No
Final Decision:
12 January 2017
Considered under 5th Edition of the Code.
Complaint Summary
‘This product is incredibly high strength, served in a non-resealable can and is not designed to be shared. I would argue that it is impossible to drink it responsibly as each one contains more than a mans recommended daily allowance and twice as much as a woman’s in each 500ml serving.
The fact that it is served in cans means that once opened they must be consumed or rapidly lose quality of taste etc. This encourages people to drink the entire can in one serving or have their consumer rights impinged.’
Complainant
Portsmouth City Council (Health, Community Safety, Licensing Team)
Final Decision
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.
NOT UPHELD
Under Code paragraph 3.2(a):
A drink, its packaging and any promotional material or activity should not in any direct or indirect way give the higher alcoholic strength, or intoxicating effect, undue emphasis. A products lower alcoholic strength may be emphasised proportionately when it is below the average strength for similar beverages. Factual information about alcoholic strength may be given.
NOT UPHELD
Under Code paragraph 3.2(g):
A drink, its packaging and any promotional material or activity should not in any direct or indirect way urge the consumer to drink rapidly or to ‘down’ a product in one.
NOT UPHELD
The company’s submission
The producer began by saying that they imported Oranjeboom 8.5 500ml can into the UK prior to August 2014 via Oranjeboom UK Ltd (OUK). The producer emphasised that no Oranjeboom 8.5 500ml can had been sold or shipped into the UK under their control after August 2014. They went on to state that Oranjeboom 8.5 500ml can is sold all over the world and that any presence of this product dated after August 2014 must have been traded into the UK. The producer added that that neither themselves nor the importer (Oranjeboom UK Ltd) had any plans to market or distribute Oranjeboom 8.5 500ml can in the domestic market of the UK now or in the future.
Oranjeboom UK Ltd (importer) stated that they had not imported Oranjeboom 8.5 500ml can into the UK since August 2014 and had no intentions to do so again. The importer added that they do still import other Oranjeboom branded products into the UK but that for some time have concentrated on the Oranjeboom 5% Lager, in both cans and bottles.
The Panel’s assessment
The Panel noted that although both the producer and the importer said that they had not imported Oranjeboom 8.5 500ml can into the UK since August 2014 the product had been found for sale in the UK with a production date of 23 April 2015, and was therefore being imported into the UK via unidentified channels. The Panel agreed that because the product is still being marketed and distributed for sale in the UK the product is within the remit of the Code.
The Panel first considered whether the product encouraged “immoderate” or “irresponsible” consumption and how the Code should be interpreted; in particular the meanings of “immoderate” and “irresponsible”. The Panel agreed that the Code is principles based and for that reason immoderate and irresponsible consumption is not precisely defined within it. Accordingly, in interpreting the Code the Panel must apply those terms in a common sense way, doing so in the light of all factors that it considers relevant to the circumstances of each case. The Panel is also entitled to take account of current attitudes and norms including any relevant Government and other reputable sources of guidance about the parameters of moderate drinking. Ultimately, however, it is for the Panel to make its own assessment as to what those parameters are, and whether or not the packaging of a particular product encourages (whether directly or indirectly) the exceeding of those parameters.
When addressing whether or not a particular amount of alcohol consumption should be regarded as immoderate, one of the reference points to which it was proper for the Panel to have regard was the CMOs’ guidelines. The Panel discussed that the CMOs’ guidelines were not equivalent to legislation. Nevertheless, the guidelines come from an authoritative source and it is right that the Panel has regard to them as a source of guidance and insight. The Panel noted that the complaint was based on the CMOs’ 1995 guidelines, which had been superseded. The new 2016 Low Risk Drinking Guidelines stated that “To keep health risks from alcohol to a low level it is safest not to drink more than 14 units a week on a regular basis. If you regularly drink as much as 14 units per week, it is best to spread your drinking evenly over 3 or more days. If you have one or two heavy drinking episodes a week, you increase your risks of death from long term illness and from accidents and injuries ….”[1]. In relation to single occasion drinking episodes the Guidelines specified no limit, but stated more generally that “The Chief Medical Officers’ advice for men and women who wish to keep their short term health risks from single occasion drinking episodes to a low level is to reduce them by: limiting the total amount of alcohol you drink on any single occasion; drinking more slowly, drinking with food, and alternating with water; …”.
The expert Guidelines Development Group, which advised the CMOs, had recommended against a daily guideline because most people do not drink every day[2]. This was on the basis of the differences in short term risks faced by different people drinking the same amount can be so wide, and because the actual risk faced by any particular person can also be substantially altered by a number of factors; including how fast they drink, prior knowledge about how alcohol tends to affect their skills and inhibitions, how safe their environment is, and any plans they have made in advance to reduce their risks (such as staying around someone they can trust and planning safe transport home)[3].
The Panel was of the view that cans of Oranjeboom 8.5 500 ml are likely to be viewed by consumers as an option for regular day-to-day consumption, and that the sale of the product in non‑resealable 500ml cans containing more than 4 units of alcohol is likely to lead to consumers drinking more than 4 units of alcohol on a single drinking occasion. However, the Panel noted that the current CMOs’ guidelines did not put forward a daily or single occasion drinking guideline, and the Panel could not infer from the evidence presented to the CMOs by the Guidelines Development Group that 4.25 units on a single occasion was an immoderate (whether because of increased risk to health or safety or otherwise) level of drinking. The Panel had not seen evidence regarding the extent to which a can of Oranjeboom 8.5 500ml was drunk by consumers more than 3 times a week, such as to place drinkers in breach of the recommendation in the CMOs’ new weekly guideline. The Panel therefore concluded that there was insufficient evidence to find a breach of Code paragraph 3.2(f).
The Panel could not see anything on the packaging that would encourage a consumer to drink rapidly or to ‘down’ a product in one. Accordingly, the Panel did not uphold the product under Code paragraph 3.2(g).
The Panel went on to consider whether the product should be reviewed under any other aspect of the Code. The Panel raised concerns with regard to rule 3.2(a), that a product’s packaging should not in any direct or indirect way give the higher alcoholic strength undue emphasis. The Panel discussed the size and prominence of the ‘8.5’ (indicating the strength of the product) displayed on the front of the product alongside the words ‘imported’ and ‘extra strong’. The Panel said that the ‘8.5’ was larger and bolder than some of the other wording on the can and that it was quite prominent. However, the Panel agreed that, particularly taking into account the fact that the product comes in a number of different strengths, that it was useful for the consumer to know that the product was 8.5% ABV. The Panel also agreed that the words ‘imported’ and ‘extra strong’ were factual and not unduly emphasised when compared with other wording on the product. The Panel did not think that the product packaging placed undue emphasis on the alcoholic strength of the drink. Accordingly, the Panel did not uphold the product under Code paragraph 3.2(a).
Action by the company
No further action required.
[1] UK Chief Medical Officers’ Low Risk Drinking Guidelines, August 2016: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/545937/UK_CMOs__report.pdf
[2] Ibid, paragraph 14
[3] Ibid, paragraph 26