14 August 2020
What you need to know
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On 31 July 2020, new requirements for pregnancy warning labels on alcoholic beverages became mandatory in Australia and New Zealand and are required to be implemented within three years. Labels must contain a prominent red and black image of a pregnant woman and larger volume products must also include a pregnancy warning statement.
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The Alcohol Beverages Advertising Code (ABAC) Scheme has recently upheld complaints in relation to alcohol advertising or packaging against Thirsty Camel Bottleshops, Booze Brothers and Hop Nation, requiring the removal or modification of the advertising or packaging.
What you need to do
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Alcohol businesses need to familiarise themselves with the new pregnancy warning labelling requirements and take steps to implement the new warning on labels by 31 July 2023.
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Businesses should also ensure their alcohol product packaging and marketing is age-appropriate and does not glamorise or encourage excessive drinking. Seek legal advice about compliance of product labels and marketing material with the Food Standards Code and relevant legislation and industry codes of practice prior to releasing new packaging and marketing materials.
Recent developments in alcohol labelling and marketing
The Australian alcohol industry is saturated with examples of clever branding, creative advertising campaigns and striking, colourful and unusual packaging. However, it is heavily regulated and alcohol businesses need to be mindful of the various legal and industry codes of practice requirements and restrictions when releasing new alcohol product packaging or advertising campaigns. This is highlighted by some recent developments in alcohol product labelling and marketing discussed below.
Mandatory alcohol labelling
Alcohol producers are required to comply with the mandatory information required on product labels under the Food Standards Code (the Code). Although this differs depending on the type of alcoholic beverage, information typically required includes:
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product descriptions;
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volume statements;
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alcohol content;
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number of standard drinks;
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country of origin labelling; and
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supplier and packer name and address.
Pregnancy warning labels
In addition to the above requirements, new mandatory pregnancy warning label requirements for alcohol came into effect on 31 July 2020. Alcohol producers will now have three years – until 31 July 2023 – to implement the changes.
The requirements for the new pregnancy warnings are contained in Standard 2.7.1 in the Code. In most cases, warning labels must appear in red, black and white with the words "PREGNANCY WARNING" and "Alcohol can cause lifelong harm to your baby", together with an image of a pregnant women.
The particular warning label depends on the volume of the alcoholic beverage, with products greater than 200ml in volume required to include the image together with the warning statement. Products less than 200ml in volume are required to include the image only.
Although alcohol producers have three years to implement these changes, steps should be taken now to incorporate the warning labels on products.
Alcohol marketing
As well as complying with the requirements under the Food Standards Code, Australian Consumer Law and State liquor licensing laws, alcohol product packaging and marketing should be consistent with the various codes of practice relevant to the marketing of alcohol. These codes include:
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the Alcohol Beverages Advertising Code Scheme;
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Australian Association of National Advertisers (AANA) Codes of Ethics;
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Commercial Television Industry Code of Practice;
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Commercial Radio Codes of Practice; and
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Outdoor Media Association Code of Ethics, Alcohol Policy and Placement Policy.
The ABAC Scheme sets out standards for alcohol marketing in Australia in the ABAC Responsible Alcohol Marketing Code (the ABAC Code).
The ABAC Code applies to all marketing communications, including social media, advertising, product names and packaging and is designed to ensure alcohol is marketed in a responsible manner. This means marketing content must not:
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encourage excessive consumption of alcohol;
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have strong or evident appeal to minors;
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suggest that consumption creates a change in mood or contributes to success; or
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show consumption of alcohol before or during an activity requiring physical co-ordination, such as driving a vehicle.
Complaints about alcohol marketing are made via the Ad Standards online lodgement system and are assessed by Ad Standards as well as by the ABAC Scheme. If the complaint is upheld under the ABAC Scheme against a business who is a signatory to the scheme, the offending marketing materials must be withdrawn, discontinued or modified within 5 business days.
Recent complaints
The majority of recent complaints concern one-off posts on digital marketing platforms, including:
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A Thirsty Camel Bottleshops WA Facebook post depicting a trolley full of wine bottles, captioned "stocking up the bunker for the weekend" and a shared image with the comment "Relate?" of Kermit the Frog containing the words "When you're on day 2 of your self quarantine but your 8th bottle of wine". This complaint was upheld as it suggested that excessive alcohol use is a prop to deal with stress or is an essential item to be 'hoarded' in huge amounts during a pandemic.
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A banner advertisement on the InDaily news website prepared by the Saturno Group for alcohol retailer Booze Brothers. The image contained several Cooper Brewery cans (but was not created or approved by Coopers) arranged by colour, reminiscent of the Lifesavers lollies, with the words "Lifesavers with independent colours and natural flavours". The complaint was upheld as it made a clear reference to the well-known confectionery, and children would likely be drawn to the advertisement due to the layout, colours and reference to Lifesavers lollies.
Complaints such as these are fairly easily remedied. However, where complaints relate to product packaging or large scale advertising campaigns, rectifying these can be onerous and costly, as well as having the potential to have a negative impact on the company's brand.
In 2019, the ABAC upheld a complaint against the packaging of Hop Nation's Jedi Juice NEIPA style beer (NEIPA refers to New England IPA) on the basis of its appeal to minors. The 'Jedi Juice' beer contained a street art style image of the Princess Leia Star Wars character. The complainant alleged the packaging was marketed at minors after visiting a bottle shop with teenagers who were excited about the Jedi Juice packaging and asked whether they could have some because it was "so cool".
Hop Nation is not a signatory to the ABAC (as a member of the Independent Brewers Association) and was not contractually bound by the Panel's decision. However, it co-operated with the determination and updated its packaging, replacing 'Jedi Juice' with 'J-Juice Neipa Beer' and the Princess Leia-like image with a woman covered in tattoos holding a smoking gun.
While is difficult to rule out the risk of a consumer or competitor complaint altogether, it is prudent to seek legal advice before releasing new product packaging or marketing for an alcohol product. The ABAC also offers a pre-vetting service to assess proposed advertisements and packaging and provide general guidance about the appropriateness of the materials.
For further information, please contact:
Lisa Ritson, Partner, Ashurst
Lisa.ritson@ashurst.com
