ABAC Adjudication Panel Final Determination No. 70/20
Product:
Company:
Media:
Date of decision:
Panelists:

Choc Milk Stout
Howler Brewing
Packaging
27 July 2020
Professor The Hon Michael Lavarch (Chief Adjudicator)
Ms Debra Richards
Professor Richard Mattick

Introduction
1.

This final determination by the ABAC Adjudication Panel (“the Panel”) concerns the
packaging for Choc Milk Stout by Howler Brewing (“the Company”) and arises froma complaint received 29 May 2020.

2.

Alcohol marketing in Australia is subject to an amalgam of laws and codes ofpractice, that regulate and guide the content and, to some extent, the placement ofmarketing. Given the mix of government and industry influences and requirements
in place, it is accurate to describe the regime applying to alcohol marketing as quasiregulation. The most important provisions applying to alcohol marketing are foundin:(a)Commonwealth and State laws:•

Australian Consumer Law – which applies to the marketing of all
products or services, and lays down baseline requirements, such asthat marketing must not be deceptive or misleading;•legislation administered by the Australian Communications andMedia Authority – which goes to the endorsement of industry codesthat place restrictions on alcohol advertising on free to air television;•

State liquor licensing laws – which regulate retail and wholesale saleof alcohol, and contain some provisions dealing with alcoholmarketing;

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(b)Industry codes of practice:•

AANA Code of Ethics – which provides a generic code of goodmarketing practice for most products and services, including alcohol;•

ABAC Responsible Alcohol Marketing Code (“ABAC”) – which is an
alcohol specific code of good marketing practice;•certain broadcast codes, notably the Commercial Television Industry
Code of Practice – which restricts when advertisements for alcohol
beverages may be broadcast;•Outdoor Media Association Code of Ethics – which places
restrictions on the location of alcohol advertisements on outdoorsites such as billboards.

3.

The codes go either to the issue of the placement of alcohol marketing, the content
of alcohol marketing or deal with both matters. The ABAC deals with both theplacement of marketing i.e. where the marketing was located or the medium bywhich it was accessed and the content of the marketing irrespective of where themarketing was placed. The ABAC scheme requires alcohol beverage marketers tocomply with placement requirements in the other codes as well as meeting thestandards contained in the ABAC.

4.

For ease of public access, Ad Standards (AS) provides a common entry point foralcohol marketing complaints. Upon a complaint being received by AS, a copy ofthe complaint is supplied to the Chief Adjudicator of the ABAC.

5.

The complaint is independently assessed by the Chief Adjudicator and AS andstreamed into the complaint process that matches the nature of the issues raised in
the complaint. On some occasions, a single complaint may lead to decisions byboth Ad Standards Community Panel under the AANA Code of Ethics and the ABAC
Panel under the ABAC if issues under both Codes are raised.

6.

The complaint raises concerns under the ABAC Code and accordingly is within the
Panel’s jurisdiction.

The Complaint Timeline
7.

The complaint was received on 29 May 2020.

8.

Generally, the Panel endeavours to make a decision within 30 business days of thereceipt of a complaint but this timeline is not applicable due to the two-part process
involved in determinations concerning product names and packaging.

9.

The quasi-regulatory system for alcohol beverage marketing features independent
examination of most proposed alcohol beverage marketing communications against
the ABAC prior to publication or broadcast. Pre-vetting approval was not obtained
for the marketing communication.

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Marketing Communication
10.

The following product packaging is referred to in the complaint.

The Complaint
11.

The complainant is concerned about the product using the same label layout andcolours as a tin of Milo with his young primary school aged children thinking it wasa drink of Milo in the fridge at home.

The ABAC Code
12.

Part 3 of the ABAC Code provides that a Marketing Communication must NOT:(b)(i) have Strong or Evident Appeal to Minors

13.

Definition in Part 6 of the ABAC provides:
Strong or Evident Appeal to Minors means:(i)likely to appeal strongly to Minors;(ii)

specifically targeted at Minors;(iii)

having a particular attractiveness for a Minor beyond the general
attractiveness it has for an Adult;(iv)

using imagery, designs, motifs, animations or cartoon characters that arelikely to appeal strongly to Minors or that create confusion withconfectionary or soft drinks; or(v)

using brand identification, including logos, on clothing, toys or othermerchandise for use primarily by Minors.

A Minor means a person who is under 18 years of age and therefore not legallypermitted to purchase an alcohol beverage in Australia.
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The Company’s Responses
14.

The Company responded to the complaint by letter dated 10 June 2020. The
principal points made by the Company were:•

We are not going to argue as to whether our label is aimed to encouragechildren to drink, because simply …. IT…. IS … NOT. We are not trying to
expand our customer base into the children and adolescent market. We do
not believe our label is going to start an onslaught of underage drinking
because one child (maybe, we will never know the motivations of thecomplainant) looked twice at our can.

•We of course know what the outcome will be of today’s panel, looking at yourprevious judgements.

•

We believe there are three protections in our society to police underagedrinking, that work reasonably well, and that craft beer is not the trojan horsethat is going to undermine these protections.
oA child by law cannot walk into a bottle shop and buy alcohol
underage.

o

A child by law cannot walk into a bar and purchase alcohol underage.

oParental guidance and care, a simple task of explaining that is not Milo,but a can of stout. A drink that you will in no way enjoy, and if you do
open it you owe me $8, as they are bloody expensive.

•

This brings us to price point. How the craft beer industry is being targeted(and by who? Think about it?) is beyond us when there are drinks out clearly
aimed at adolescents and young adults, high in alcohol, cheap and readily
available. Craft beer is inherently expensive, one might grab 6 different cansand walk out of a bottle shop with very little change from a $50 note. WE
ARE NOT AIMING OUR BEER AT CHILDREN OR ADOLESENTS.

•

Again, we state, we have not aimed our beer at children, simply. And nor do
we believe our label will encourage a child to start drinking.

•This ABAC process is grossly unfair for the defendant, as one complaint fromwhat could be a disgruntled customer, someone suffering, or an ultraconservative (maybe the child in the complaint is also suffering) can derail awhole products design. Is the complainant, checked, notified, asked torespond to questions from us? Again, how can they hold all the power? Theycan (one person) completely change a name, look and marketing of one of
our products, and why?

•

You hold all the power, if you decide the complaint justified, then you hang a
guillotine over our heads that would virtually compromise any craft beerbusiness from growing their wholesale market. This to us is the kicker,
literally. Basically, the ABAC’s mandate is “If we do not do what you say –then you will not be able to sell your beer to 65% of bottle shops in Australia”.
And that percentage is growing. Thanks.

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•

15.

Finally, we also believe that what we do is Art – beer is art, the production isa scientific artform, the naming, label design and marketing are also a formof art, now we are censoring art, again I go back to the fact based on one
complaint.

On 22 July 2020 the Company exercised its entitlement to a rehearing and madeadditional submissions. The principal points made by the Company were:•

We are struggling to find the words to describe our feelings towards the
ABAC, the process you employ to deal with complaints and the power you
and one person can wield, with no real recourse for us. We do understandthere has to be structure and boundaries around marketing towards children,
and we say this as we watch sophisticated and constant advertising by online gambling companies who groom our children daily.

•

We quote this line from your findings "but the test is not the Company's
intention but how the marketing communication would be probably
understood by a reasonable person". We believe that a reasonable person
would understand that the following parameters don't apply to our product:
The ABAC Code
12. Part 3 of the ABAC Code provides that a Marketing Communication must NOT:(b)(i) have Strong or Evident Appeal to Minors
13. Definition in Part 6 of the ABAC provides:
Strong or Evident Appeal to Minors means:(i) likely to appeal strongly to Minors;(ii) specifically targeted at Minors;(iii) having a particular attractiveness for a Minor beyond the general attractiveness it
has for an Adult;(iv) using imagery, designs, motifs, animations or cartoon characters that are likely
to appeal strongly to Minors or that create confusion with confectionary or softdrinks; or(v) using brand identification, including logos, on clothing, toys or other merchandisefor use primarily by Minors.
A Minor means a person who is under 18 years of age and therefore not legallypermitted to purchase an alcohol beverage in Australia.

•

Although one could argue that clause (iv) and (v) do relate to our product, weagain use your phrase "understood by a reasonable person". We believe any
reasonable person would understand that this product does not strongly
appeal to minors and believe that this is reflected by the fact you only
received one complaint from someone of whom we don't and won't
ever know their motivation for complaining.

•

A reasonable person would also understand that our beer (and most craftbeer) is priced beyond the reach of minors.

•

If evidence within the community showed there were minors everywhere
getting drunk on Howler Stout and the ABAC received a flood of complaints,

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then we would of course accept the ruling, but of course this is not the caseat all.

The Panel’s View
Introduction
16.

On 22 June 2020 the Panel made a provisional determination that the packaging(can labelling) of the Howler Brewing Choc Milk Stout was in breach of Part 3 (b)(i)of the ABAC. On 22 July the Company sought a rehearing of this decision asprovided under the Rules and Procedures applying to the ABAC Scheme when
product packaging is found to be inconsistent with a Code standard. A rehearing
means the Panel looks at the complaint afresh and makes a new decision taking
into the account the complaint, the packaging and the arguments advanced, both
initially and on requesting the rehearing, by the Company.

17.

The complaint raises the consistency of the can branding of the Choc Milk Stout
with the ABAC standard which provides that an alcohol marketing communicationmust not have a strong or evident appeal to minors. According to the guidance foundin the definition of 'Strong and Evident Appeal to Minors' in the Code definitions, abreach might arise if the packaging:• is likely to appeal strongly to minors;• specifically targets minors;• has a particular attractiveness for a minor beyond the general attractivenessit has for an adult;• uses imagery, designs, motifs, animations or cartoon characters thatare likely to appeal strongly to minors or that create confusion withconfectionery or soft drinks;• uses brand identification, including logos on clothing, toys or othermerchandise for use primarily by minors.

18.

The complainant contends the strong and evident appeal of the packaging
arises because the can uses the same layout and colours of the non-alcoholic
milk additive, Milo. The similarity is argued to mean that the product branding may
be readily identified by minors, strongly appeal to minors and cause confusion with
the non-alcoholic Milo drink.

19.

The Company responds to the complaint both in its original submission and second
submission seeking a rehearing of the provisional determination, at two levels.
Firstly, the Company questions the fairness and utility of the ABAC Scheme andsecondly, it contends that a reasonable person would not consider that its producthas a strong appeal to minors. It is the second argument rather than the first that
falls within the remit of the Panel and will be the focus of this determination - namely
does the product packaging have strong or evident appeal to minors. Given,however, the extent of critique by the Company on the ABAC Scheme and its place
within the wider regulatory framework applying to alcohol, it is appropriate to provide
a brief response on these points.

Does the packaging have strong or evident appeal to minors
20.

The complainant contends the Choc Milk Stout can design uses the same label
layout and colours as a tin of Milo. The Milo packaging design features:
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•
•
•
•
•

a mid-green background colour;a paint palette shaped white background area in which the brand names areplaced;the brand name Milo in large font and coloured brown;a smaller font Nestle brand name in red; andtypically, a sports image (cricket, netball, cycling, football).

21.

Milo is a product familiar to most Australians and was originally developed andmanufactured by Nestle in Smithtown near Kempsey in 1934. It is made with malt,barley, milk powder, sugar and cocoa and is drunk mostly with milk or with hot waterand milk. It has become a hugely successful product with 6.5 billion glasses or cupsof Milo consumed worldwide each year. Australian consumption is estimated to be
480 million serves of the drink annually. Milo is also available as a breakfast cereal
and a snack bar.

22.

While Milo would be consumed across age groups, its primary market is children.
The website for Milo clearly indicates the focus of the product with references suchas 'Since 1934 Milo has been giving active kids what they need to get the most outof every day.' The website also details the relationship the brand has with children's
sports. Consumption data was not placed on the website, but other sourcesindicated the largest consumer group for the product is children aged 8 to 14.
The Australian Health Survey published by the Australian Bureau of Statistics lends
further weight to the conclusion that Milo is heavily consumed by minors.
The Survey shows flavoured milk is used most extensively in the 9 to 13 and 14 to
18 age segments.

23.

There can be no doubt that the Choc Milk Stout can design is drawn from the Milopackaging. The Company has employed a similar green background colour, similar
white paint palette area for brand names, and a similar colour for the 'Stout' and'Howler' names compared to 'Milo' and 'Nestle' on the Milo packaging. There aredifferences between the Company's design and the Milo design, butthese differences do not distract from the overall impression that the Company's
can is a play on the Milo packaging. The issue is whether this homage to the Milo
design can be concluded to give the Company's product packaging strong orevident appeal to minors.

24.

The Company in its original and rehearing submissions did not purport to argue thatits packaging was not based on the Milo design, nor that its purpose was not tobring Milo to mind. Presumably the Company is seeking to emphasise the style ofbeer and to potentially create a sense of light-hearted nostalgia in adult consumers.
Rather the Company arguments (aside from the critique about the operation of the
ABAC Scheme) are based on the contention that a reasonable person would
not believe the product would strongly appeal to minors. It's arguments canbe summarised as follows:• there was no intention for the can design to encourage underage drinking nor
to expand the Company's market to children and adolescents and it is
not considered this will happen;• the protections against underage drinking are laws which create the legal
drinking age and which prohibit alcohol consumption by minors and sales tominors and the responsibility of parents to guide and supervise children aboutalcohol;
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•••a reasonable person would understand that our beer (and most craft beer) is
priced beyond the reach of minors;
any reasonable person would understand that this product does not strongly
appeal to minors and we believe that this is reflected by the fact ABAC only
received one complaint from someone of whom we don't and won't ever know
their motivation for complaining; andif evidence within the community showed there were minors everywhere
getting drunk on Howler Stout and the ABAC received a flood of complaints,
then we would of course accept the ruling, but of course this is not the case at
all.

25.

In assessing if an alcohol marketing communication is consistent with an ABAC
standard the Panel is to adopt the standpoint of the probable understanding of themarketing item by a reasonable person taking the content of the marketing as awhole. The notion of the 'reasonable person ' is drawn from the common law system
and means that the life experiences, values and opinions common in a majority of
the community is to be the benchmark.

26.

The Panel has made numerous previous decisions concerning the assessment of
whether a marketing communication has strong appeal to minors.
Some characteristics within a marketing communication which may make it strongly
appealing to minors include:• the use of bright, playful and contrasting colours;• aspirational themes that appeal to minors wishing to feel older or fit into anolder group;• illusion of a smooth transition from non-alcoholic to alcoholic beverages;• creation of a relatable environment by uses of images and surroundingscommonly frequented by minors;• depiction of activities or products typically undertaken or used by minors;• language and methods of expression used more by minors than adults;• inclusion of popular personalities of evident appeal to minors at the time of
the marketing (personalities popular to the youth of previous generation
will generally not have strong current appeal to minors);• style of humour relating to the stage of life of a minor (as opposed to humour
more probably appealing to adults); and• use of a music genre and artists featuring in youth culture.

27.

It should be noted that only some of these characteristics are likely to be present ina specific marketing communication and the presence of one or even more of thecharacteristics does not necessarily mean that the marketing item will have strong
or evident appeal to minors. Each case must be assessed on its own merits and itis the overall impact of the marketing communication rather than an individual
element which shapes how a reasonable person will understand the item.

28.

While the Company has advanced its arguments with force, it has in effect conflated
the product branding with the product itself. The Panel is not assessing the physicalbeverage and the appeal of the beverage to underage drinkers. Nor is the Panel
undertaking a market analysis to determine the age and income profile ofconsumers of the product. The ABAC standards go to 'alcohol marketing
communications' and how a reasonable person would probably understand themarketing, which is in this case, the appeal of the can label design to minors.
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29.

The Panel believes the packaging is inconsistent with the Part 3(b)(i) standard. In
reaching this conclusion the Panel noted:• the product packaging is clearly modelled on the packaging of the nonalcoholic product of Milo;• Milo is a product used to flavour milk and is consumed more heavily andappeals directly to minors;• the 'choc milk' term while intended to describe the character of the beer ismore commonly a term used on non-alcoholic beverages;• the packaging (not the actual taste of the physical product) raises a strong
inference of an alcoholic product that could be similar to chocolate milk andcreate a strong appeal to minors;• while the term 'stout' would be recognised by beer drinkers,
the overall impression created by the packaging is not of an alcohol
beverage and may create confusion with a soft drink; and• taken as a whole a reasonable person would probably understand the
packaging as having a strong and evident appeal to minors.

Alcohol Marketing Regulation and the ABAC Scheme30.

As noted in paragraph 19, the Company's response to the complaint provided a
critique of the ABAC process and the wider regulatory framework applying toalcohol marketing. In the Company's view, the ABAC process is unfair as:• a single compliant can 'derail a whole product design';• a respondent alcohol company cannot ask questions of the complainant;• complainants 'hold all the power' and the motivation of a complainant is
unknown; and• label design and marketing is a form of art and the complaint process is'censoring art'.

31.

In wider terms, the Company argues the safeguards against underage drinking are
to be found in:• parental responsibility;• liquoring licensing laws which make consumption and supply of alcohol tounder 18 year olds illegal; and• the price point of Choc Milk Stout would put it out of reach of minors
in economic terms.

32.

As the Company's response demonstrates, the impact and regulation of alcoholmarketing is a contested space within the wider public debate of how best alcoholshould be available and used in the community. Views on regulation range fromarguments that all alcohol marketing should be prohibited, and plain packaging
mandated for alcohol products to the more libertarian view that marketing regulation
is akin to unwarranted censorship as espoused by the Company. It is not the Panel'srole to decide questions of public policy. Ultimately how alcohol marketing shouldor should not be regulated is a matter for government.

33.

Australian governments have collectively resolved the public policy framework foralcohol via the National Drug Strategy and the associated sub strategies. One of
the sub strategies is the National Alcohol Strategy 2019-2028. This sub strategy
consists of four priority areas of focus, one of which is about reducing opportunity
for the availability, promotion and pricing of alcohol to contribute to risky alcohol
consumption. While the detail of the focus area is beyond the scope of thisPage 9/11

determination, it is noted that government does believe that alcoholmarketing needs to be regulated and that this extends to controls on
alcohol promotion to protect at risk groups, including youth. The strategy notes
regulation falls in a shared domain between State and Territory liquor licensing
regimes and the industry-based codes and schemes including the ABAC. And it iscommon ground between the government regimes and the ABAC that alcoholmarketing must not have strong appeal to minors.
34.

As a Victorian based entity, the Company is regulated by the Victorian Commission
for Gambling and Liquor Regulation. The Commission has issued a Guide toresponsible advertising and promotion of liquor. The Guide articulates 16 principles
for responsible marketing which are illustrated by examples of unacceptable
practice. The principles and examples include:• Principle 14- Advertising or promotion of liquor must not encourage
underage drinking. Unacceptable practice includes using characters,
imagery, designs, motifs .. that are likely to appeal to minors.
• Principle 15- The advertising or promotion of liquor must not incorporate
images of people who are, or who appear to look under 18 years of age,unless there is no suggestion that they have just consumed or are about toconsume liquor.

35.

The requirements under the Victorian regime are similar to the Part 3(b) standard
within the ABAC. Accordingly, while the Company may be of the opinion that thedesign of its can labelling is of no material impact on minors and that regulation ofthis marketing is unwarranted, this is not the position reflected under policy
and regulatory regimes. Public policy does recognise the primary role of parents
in guiding children in understanding the consequences of alcohol use and the needto make sensible choices. Both government and the alcohol industry however
believe parental responsibility should be supported by alcohol marketing occurringconsistently with standards of good practice.

36.

The ABAC Scheme is at its heart a self-regulatory initiative of the alcohol industry.
Alcohol producers and retailers agree to market their products and retail outlets
consistently with the Code standards of good marketing practice. The Scheme isin three parts namely the Code, the pre-vetting service and the public complaints
process. The Scheme is governed by a Management Committee comprising
representatives of the alcohol industry, Communications Council and the Federal
Department of Health on behalf of all Australian governments. The terms of theCode itself and the Rules and Procedures to which both the pre-vetting service andthe complaint adjudication process abide are set by the Management Committee.
Actual decisions on pre-vetting applications and complaint determinations are madecompletely independently of the Management Committee.

37.

The ABAC Scheme and the complaints process has been the subject of several
major governmental reviews since its establishment in 1998. In relation to theCompany's critique, no review has found that the threshold for triggering acomplaint determination should require multiple complaints. Further, it has not beensuggested in reports which have reviewed the Scheme that the 'motivation' of acomplainant should be subject to testing and questioning by alcohol companies. It
might also be noted that in these respects the Australian practice is entirely
consistent with international practice in both self-regulatory and direct government
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alcohol marketing complaint schemes in New Zealand, Great Britain, European
Union and North America.
38.

It is recognised that an adverse determination on a product name and labelling ispotentially very impactful on a producer. It is for this reason that the Rules
and Procedures for the complaint adjudication process involving product packaging
ensure that respondent alcohol companies are afforded additional procedural
fairness steps than occurs with complaints about a single advertisement through:• being supplied with the complaint and questions from the Panel so that theissues in contention are clearly identified for response;• being supplied with a provisional determination and afforded the opportunity
to seek a rehearing;• the entitlement to make additional submissions to address the provisional
findings; and if product branding is found in breach of the Code• the entitlement to gain a 'once and for all' clearance of revised productbranding which then cannot be subject to a further complaint process.

39.

Finally, it is noted that the Company had available to it the pre-vetting service togain an independent assessment of its product branding prior to putting the productonto the market. While pre-vetting approval does not guarantee thata subsequent public complaint won't be made or the outcome of the independent
complaint process, statistically very few marketing communications which havebeen pre-vetted against the Code standards are found to be in breach of the Code.
It might have been both good practice and prudent risk management to have taken
this simple measure.

40.

The complaint is upheld.

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