Company:
Marks and Spencer Group plc
Breach:
Yes
Final Decision:
18 July 2019
Considered under the 5th Edition of the Code.
Complaint summary
“I wish to bring to your attention Pornstar Martini in a can by M&S, which I believe contravenes the Portman Code. I believe it breaches 3.2d sexual success/activity. Pornstars are idolised as people who have sexual success and paid for doing so. Therefore, hearing this name on a can of an alcoholic cocktail is linking alcohol with sexual success. If you continue to allow this, it will open the flood gates to others e.g. Sex on the Beach, Slippery Nipple, Sloe Comfortable Screw, Liquid Viagra etc.”.
Complainant
Portman Group acting in lieu of a member of the public
Decision
Under Code paragraph 3.2(d)
A drink, its packaging and any promotional material or activity should not in any direct or indirect way suggest any association with sexual activity or sexual success.
UPHELD
The company’s submission
The company began by highlighting that its values – acting with integrity, innovating, inspiring and being in-touch – are part of its everyday working life. The company stated that it always takes a responsible approach and applies the highest standards when it comes to selling and marketing its products. The company explained that its advertising and communications are designed to inspire and inform customers and its commitment is always to do this in a way that is fair, informative, inclusive and transparent. The company also stated it takes promoting responsible drinking very seriously and that it is a signatory to the Portman Group and Drinkaware.
The company highlighted guidance issued by the Portman Group’s Advisory Service which identifies numerous characteristics of product naming and packaging which are likely to be problematic under Code Rule 3.2(d), these included ‘graphic sexual references, gratuitous sexual imagery and references to sexual activity’. The company explained that in relation to the ‘references to sexual activity’ the term ‘Porn Star’ is intended as a reference to a category of person rather than a sexual activity.
The company explained that Porn Star Martini is a cocktail drink with vanilla vodka, passion fruit juice and flavourings. The company stated that it launched its version of the drink in September 2018 following research into the bestselling cocktails in the drinks industry. The company explained that Porn Star Martini was identified as the most popular choice by on-trade consumers of cocktails and in 2018 CGA Strategy reported the Porn Star Martini as the most ordered cocktail in the on-trade. The company stated that Porn Star Martini is an incredibly well-known name for a cocktail that has been sold and recognised worldwide for over sixteen years. The company stated that when customers see the name ‘Porn Star Martini’ they associate it with the passion fruit juice-based vodka cocktail and not with sexual activity or sexual success.
The company drew attention to Regulation (EU) No 1169/2011 which stipulates that the name of the food shall be its legal name. In the absence of such a name, the name of the food shall be its customary name, or, if there is no customary name or the customary name is not used, a descriptive name of the food shall be provided. The company explained that a customary name is a name which is accepted as the name of the food by consumers in the Member State in which that food is sold, without that name needing further explanation. The company stated that in its opinion the name Porn Star Martini is a customary name which has been accepted by consumers in the UK to represent the popular passion fruit juice-based vodka cocktail drink. In the opinion of the company, a consumer would therefore associate the words Porn Star Martini with the well-known cocktail drink as opposed to any associations with pornography.
The company highlighted the product packaging design and explained that it features an art deco style cocktail glass against a gold coloured background and was intended to resonate with a sophisticated audience. The company stated that the words ‘Porn Star’ were not given particular prominence and were presented in the same colours as the other words on the packaging.
In conclusion, the company stated that it did not intend any association between the product name and sexual success and it also did not consider that such an association could be inferred from the product label.
The Panel’s assessment
In response to the company’s point that ‘Porn Star Martini’ could be considered a customary name under Regulation (EU) No 1169/2011, the Portman Group had sought legal counsel as to whether this was the case and provided this to the Panel. The Panel considered the legal advice and was satisfied that the complaint was within the Code’s remit as it was the opinion of legal counsel that Porn Star Martini could not be considered a ‘customary name’. The Panel also noted that in any case the product did not contain the traditional ingredients that a consumer would associate with a Porn Star Martini, noting that the principle ingredient of the cocktail was prosecco, which was substituted in the M&S cocktail for carbonated water. In the company’s response to the provisional decision, it disagreed with this view and reiterated the belief that Porn Star Martini could be classified as a customary name. The Panel disagreed with this view.
The Panel carefully considered the company’s response and discussed their own research into the cocktail name. The Panel noted that the BBC Good Food Guide called the cocktail a ‘Passion Fruit Martini’ and had made a conscious effort to remove the phrase ‘Porn Star’ from the title of the cocktail; this was also the case in other similar products which Panel members had seen for sale from other retailers.
The Panel discussed the wording of Code Rule 3.2(d) and agreed that the wording of the rule was absolute in its stipulation that no drink should, in any direct or indirect way, suggest any association with sexual activity. The Panel agreed with the company’s point that there was nothing else on the packaging apart from the name which created an association with sexual activity. However, the more general definition of a ‘Porn Star’ meant an actor/actress famous for appearing in pornographic films which by their nature contained sexual activity. The Panel considered that the drink could be seen by people who were not familiar with the cocktail name but would more readily associate the name with its more established definition. On the basis of the product name, the Panel accordingly upheld the product under Code Rule 3.2(d).
Action by Company
The company voluntarily agreed to change the name of the product.