Portman Group v. Infantile Can Designs

The label for Cwtch.

News broke this morning that a complaint against the design of the can for Tiny Rebel’s Cwtch has been upheld by the Portman Group.

The Portman Group is the beer industry’s organ for self-regulation, the purpose of which is, broadly speaking, to head off this kind of issue before things get really heavy. The complaint against Cwtch was that “a member of the public, believed that the product wasn’t obviously alcoholic, due to the design, and also had a particular appeal to children”.

We have a few thoughts on this.

First, we’ve been waiting for something like this to happen. As we wrote back in March 2016 craft beer cans often feature designs that mean they resemble soft drinks, and the borderline between fun and downright infantile is pretty fine. How do you design something that will appeal to a 19-year-old but not to a 17-year-old? This is an especially important question given that the former has been a large part of the success of the crop of craft breweries that have emerged in the last decade or so.

What perhaps doesn’t help is how often we see people chortling on social media that, tee hee, craft beer cans are great because The Man assumes you’re drinking pop! Heck, we’ve even played this game ourselves. And, vice versa, when people are constantly posting pictures of fizzy pop cans with variations on the joke, “This new IPA looks interesting.”

Then there’s a second point: the nagging suspicion we’ve had that Tiny Rebel have been following the BrewDog playbook (Brew Britannia, chapter 14) and angling for some kind of dispute in which they are the oppressed underdog for PR purposes. We’re sure they must have known that the packaging was provocative — teddy bears! Candy! Cartoon characters! — just as BrewDog knew Speedball was back in 2008. In addition Tiny Rebel seem to have been actively engaged in what we’d call ‘trademark baiting’, referencing characters owned by huge corporations such as Nintendo (Princess Peach), Disney (Darth Vader) and Sony (the Stay Puft Marshmallow Man). So far they’ve got away with it, as have Robinson’s, which we suppose makes it a win-win.

Then again, maybe we’re wrong. After all, the Portman Group’s judgement suggests that Tiny Rebel played ball throughout the process and have agreed to change the packaging.

Anyway, on balance, the judgement seems fair enough to us, and hardly draconian. It would certainly seem less controversial if it as AB-InBev or Carslberg in the firing line, wouldn’t it? This kind of back-and-forth over marginal cases is far better than hard-and-fast rules which tend to push the boundary back well into the safety zone. We would certainly start to worry, though, if these rulings begin to pile up and lead to, say, a de facto ban on the use of bright colours.

We came to this story via Charlie AKA @craftybeeress who blogs at craftybeeress.com — give her a follow!

29 thoughts on “Portman Group v. Infantile Can Designs”

  1. Hmmm. I’d be interested to know who this “one member of the public” was? A random busybody with nothing better to do; or a shill for a campaigning group with a particular agendum. As tweeted yesterday: “Drip, drip, drip: https://www.beerguild.co.uk/news/cwtch-complaint-upheld/ … … The anti-alcohol brigade take another little step towards their next goal of plain packaging, with the foolish connivance of Portman Group. You weren’t the target @tinyrebelbrewco , just a minor casualty in a much bigger campaign.”
    Whether it was just a genuine one-off concern from a passer-by of a shelf of beers, or a rather more contrived complaint, suspect there’ll be numerous “health intruders” looking at this case eagerly, considering where they can take it next.

    1. I dunno, this kind of thing always sounds a bit hysterical to me. You’re probably right that there might be a few more complaints along these lines but (see Gamma Ray comment below) Portman seems to judge each on its own merits and brewers probably know, in their heart of hearts, if they’re nudging at the line.

  2. It’s important to draw a distinction between “things I don’t like” and “things I want to see banned”. After all, there’s little point in standing up for freedom if the only freedoms you defend are the ones you approve of.

    I don’t see it as credible that, in practice, little kids will be reaching out for these because of the shiny packaging.

    And, fifteen years down the line, will people be saying “this plain packaging for beer’s not too bad. It allows the essential qualities of the product to shine through without any distracting images”?

    1. As Matt Curtis flagged earlier, a similar complaint against Beavertown Gamma Ray was overturned by Portman a while ago, so there’s no reason to see this as a thin-end-of-the-wedge inevitability. They judge each case individually and (it’s always seemed to us) pass this kind of judgement quite reluctantly. Just often enough, and with just enough severity, in fact, to support the case for the industry to continue regulating itself rather than the government taking on the job.

      And I think I’m right in saying: it isn’t a ban! As I understand it, Tiny Rebel could choose to ignore Portman, as long as they don’t mind losing out on supermarket sales and chain pubs.

      1. If it means closing off the main distribution channels, then effectively it is a ban for a company operating in a commercial environment. To give another example, it isn’t illegal to smoke in hotel bedrooms. But none of the major internet booking sites will list hotels that allow it in *any* of their rooms, so it ends up being a de facto ban.

    2. I agree with Pub Curmudgeon on this point. This sort of silly complaint (and it’s equally daft upholding) is a moral panic in the making.

      As if 14 and 15 year olds are going to be drinking crafty red ales, which (while I love red ales) is hardly the sexiest of styles (mmm… malt-led and well-balanced; that’s what the kids want!). More likely they’ll be on white cider, Smirnoff Ice or that tequila-flavoured beer or summat.

      As it is, there’s no evidence to say (a) children are being targeted, or (b) they are being enticed by the branding. And again, who aged 14 or 15 is going to find a teddy bear appealing?!

  3. Yeah, I’d also see this as a) a bit daft and b) a bit concerning.

    “Looks like a soft drink” is a handy shorthand that takes up less space than a dissertation on postmodern design idioms that takes in underground comics, graffiti, rave flyers and so on, but if you actually look at soft drink cans (including Sunkist, as referenced in the original complaint) then not many of them actually look much like Cwtch.

    In practice, it feels like the real problem with it is that it’s not either faux-Victoriana or classic retro-modernism and those are the visual styles that most people associate with beer. The fact that there’s a (one-eyed, hoodie-wearing) “teddy” on the can might be the clincher for this particular complaint to be upheld, but if I was doing design work for small-to-medium breweries and didn’t want to stick to the small range of accepted styles then I’d be quite worried by this decision.

    1. “looks like a soft drink”

      single, primary colours
      one, short, snappy brand name, written vertically or diagonally in large italic text, with very little other text visible
      images suggestive of water, the sun and citrus fruit

      Is this a description of tiny rebel cwtch can design?

  4. Again, Beavertown seem to be fine, so it’s not as if this fundamentally shifts the front line or anything.

    This is product packaging, not art, and a good designer will find ways to express all the necessary attitude within the boundaries. Portman explicitly says in its judgement:

    “The Panel began by recognising that the company was trying to be innovative with regard to packaging size and design and noted that the business had grown rapidly over a short space of time. The Panel did not want to stifle creativity in this area.”

    Their particular problem here is the combo of (a) bright colours (b) 330ml can and (c) rebellious teenage imagery. Pick any two of those three and, if I’m reading it right, they’d have been fine!

  5. From where I’m sitting (brewery office) PG’s ruling seems fairly considered and reasonable – not that I necessarily agree with it. The general response however, seems overwrought and faintly hysterical.

  6. I’m with you on this. This part of the code isn’t about nanny-stating and adult drinkers making decisions but whether an adult product can conceivably be confused as indirectly or directly appealing to children. In this instance, the addition of all things together has meant that there is an indirect appeal: unfortunately having a teddy bear on your label will always put the marketer on the back foot when it comes to this particular part of the code.

  7. All fine, except

    Craft beer cans in general, and this one in particular, looks nothing like a soft drinks can.

    Soft drinks cans are not supposed to be explicitly marketed at children anyway, and there nothing about their design to suggest they are.

    There is nothing about this can, or indeed any craft beer can I can think of, that suggests it is marketed at teenagers. It contains no reference to things that teenagers are interested in, like football teams, reality tv celebrities and pop stars.

    If you think teenagers like teddy bears, you need your head testing.

    1. The notes on the judgement set it all out quite sensibly:

      1. They didn’t reckon it would actually be mistaken for a soft drinks can.
      2. But they did think the *combination* of (a) bright colours; (b) images of ‘teenage rebellion’ (graffiti, hoodies); and (c) the 330ml soft-drink-sized can might make it appealing to under 18s.

      You don’t have to agree with the judgement but it was a *judgement*, not a knee-jerk, and doesn’t seem to set the bar outrageously low.

      We got the impression that if any one of those elements had been slightly changed (e.g. it had been in a 440ml can, or the teddy wasn’t wearing a hoody) then it could easily have gone the other way.

  8. for once I agree totally with Py 🙂 Im looking forward to Tiny Rebels response as I dont feel they agree with the Portman groups statements and will comply only as I suspect supermarket listings require it.

    I would say this though if you think a tiny rebel bear in anyway appeals to kids, where are all the complaints about jolly old Father Christmas labelled beers,that some closely match a well known softdrink made in Atlanta christmas editions ? Or happy elves,rudolph the red nose reindeer, penguins, Anchor Ale even puts a Christmas tree on their label, all appearing on all manner of christmas themed alcohol drinks…anyone can be a concerned member of the public.

    Tiny Rebel should just add a sticky label across the bear that says CAMRA Champion beer 2015.

    1. “where are all the complaints about jolly old Father Christmas labelled beers”

      That’s a good question. If someone did complain about that, Portman would be obliged to investigate. But, again, they don’t go looking for things to investigate — complaints come to them, which triggers the process. They did uphold a complaint against a Halloween themed WKD promotion partly on the basis that Halloween is a child-focused event so might well uphold something similar in re: Christmas.

      What is striking, looking at the list of Portman judgements, is how rarely anyone can apparently be bothered to complain about anything. It’s a few per year rather than constant frantic activity. That’s partly because the industry has got good at heading off complaints and partly, I’m sure, because complaining requires some effort.

  9. The Portman Group is a front for big beer companies who want to stiffle the creativity of small brewers. It has nothing to do with advertising appealing to the young, and more to do with big drinks companies trying to hold on to their market.

    1. Tony — there might well be a conflict of interest inherent in the way Portman is funded but, honestly, we can’t see any evidence of them favouring big producers over little in terms of the way the judgements go.

      Small producers might be more vulnerable because, as you suggest, they tend to be a bit looser in their creative approach and don’t have teams of lawyers and marketing people to crawl over every detail but, actually, hardly any craft brewers have been investigated by Portman. We suspect that’s probably because big producers are seen as exploitative baddies and so draw the attention of campaigners whereas indie brewers mostly fly under the radar.

      Of those small brewers that have been investigated, the judgements basically seem fair to us, e.g. against a beer called Psycho that advertised itself with the copy “calling all psychos… why not let your inner madman/woman take a look”.

  10. “They did uphold a complaint against a Halloween themed WKD promotion partly on the basis that Halloween is a child-focused event”

    So we can expect Hobgoblin’s annual Hallowe’en promotion, and Greene King’s recent “Old Spooky Hen” Hallowe’en bottle labels, to be ruled against?

    It IS nanny-state nonsense, and it isn’t hysterical to say so.

    1. Yes, if someone can be bothered to make a complaint against them, and especially if they involve a plastic cauldron!

      (I feel I’m repeating myself a bit here…)

      1. The point is, it’s mild, voluntary nanny state nonsense to avoid heavy, inflexible involuntary nanny state nonsense.

        There’s a question over whether Portman equates to the alcohol industry pulling a con trick on the anti-alcohol lobby, or the anti-alcohol lobby tricking the alcohol industry into nobbling itself. So far, we reckon the alcohol industry is coming out on top in this arrangement.

  11. When Portman Group found against Dead Pony Club in 2014 on two counts, BrewDog merely produced a slightly more long-winded version of the Arkell v. Pressdram response on their website. According to Portman Group’s Complaint Decisions case files, they are still, three years later, waiting for a formal response and indication of action from BrewDog. Yet Dead Pony Club remains on sale at the likes of signatories Tesco.

    So wondering: did BrewDog make its public response knowing that “up yours” attitude would appeal muchly to many in its customer base; but then very quietly make the changes behind the scenes. Or is BrewDog a big popular enough seller that the Tescos of this world simply never got round to the requirement that they’re supposed to pull the product off the shelf?

  12. The Portman code is publicly available. If you wanted to, you could have a read of it *before* signing off a can design. If you’re bothered about selling into the big supermarkets, that is. I believe it’s what you’d call due diligence.

    1. Think one would have to do more than read the code to know what is and is not going to be acceptable. The two clauses they were found in breach of merely say:
      (f) encourage illegal, irresponsible or immoderate consumption, such as drink-driving, binge-drinking or drunkenness;
      (h) have a particular appeal to under-18s
      On (f) they were in breach because “the combination of the “Tiny Rebel” logo and the dishevelled bear placed so prominently on the packaging indirectly encouraged immoderate consumption”. Er, right?
      The ruling on (h) too long to quote, but involves bears, hoodies, colours, patterns etc.

      The code is no more than a sequence of 10 very broad brush rules, entirely open to interpretation. Looking at the can that was found in breach, and the one that is now acceptable, who would really know in advance which the panel would judge ok and which not on the basis of the (lack of) detail in the rules?
      There is however a separate Advisory Service, which will run an eye over designs etc., and brewers might be well advised to make more use of that than one suspects they currently do, if feel their product might the pushing at boundaries. (Although it is stated that just because the Advisory Service ‘passes’ it doesn’t mean the panel won’t take an entirely different view if a complaint is received.)

      1. Yes, if brewers feel they might be venturing into “edgy” territory it would make sense to run their ideas past the Advisory Service first. Clearly, anyone who knows they are stretching the boundaries won’t do this, but I get the impression that Tiny Rebel have been entirely sincere and were somewhat taken aback at receiving a complaint.

      2. No, but seriously, the advisory service is detailed in the code:
        “6. Advisory Service”

        Cheers.

  13. Session strength red ale in small cans encourages over consumption?spray can art is a teenage thing? The brewery name is definatly a bad thing. Portman seem to be implying a lot of rot but tr clearly don’t have resources for an extended fight. Luckily the decision emphasised the combination and juxtaposition of factors and moving the bear to the back of the can seems to be doing enough. Worth note that this blog illustrated with pump clip not actual can design (ok they’re very similar) no evidence that tr were looking for trouble. Interesting to note new can replaces bear with mention of champion beer of Britain award (seemingly no one would imagine camra having youth appeal). Personally I suspect can is cool enough to appeal to 17 year old kids. Four cans of tiny rebel look way cooler than four carling but come in smaller cans costing more. Maybe if supermarkets were selling these in the fridges at the entrance next to coke then Portman may have a point.

Comments are closed.