Australia: Did Duff contravene the advertising code for alcoholic beverages (ABAC)? Which case (of beer) won?

Last Updated: 4 October 2017
Article by Nathan Luke

The Facts

Woolworths launches officially licensed Duff beer trademarked "The Simpsons"

In 2014, supermarket industry behemoth Woolworths introduced an officially licensed "Duff" beer to its outlets which was trademarked "The Simpsons".

The marketing of Duff kicked off at a pub in Sydney which was transformed for the week into "Moe's Tavern", the bar depicted in the popular animated show The Simpsons, and featured "Krusty Burgers".

The online campaign was on Facebook and it made it clear that this Duff beer was officially sanctioned by The Simpsons and by the show's creator, Matt Groening.

Voluntary advertising code adopted by alcohol industry

Prior to 2014, there had been increasing awareness within Australian society of the serious social and health issues related to alcohol use, in particular under-age drinking.

To head off more onerous legislation, the alcohol industry had introduced a raft of voluntary and industry managed and funded measures. These included the Alcohol Beverages Advertising (and Packaging) Code (ABAC).

The Alcohol Beverages Advertising Code Scheme

The ABAC Scheme is the centrepiece of Australia's quasi-regulatory system and was established to respond to complaints that alcohol advertising and packaging results in excessive alcohol consumption.

The Code includes the following rules:

  • Advertisements must not encourage misuse of alcohol, for example, by depicting binge drinking or glorifying drunkenness.
  • Advertisements must not be aimed at minors or encourage minors to drink alcohol.
  • Advertisements must not suggest that alcohol is therapeutic or brings success.

Complaint brought by the Alcohol Policy Coalition

The initial online campaign for Duff beer was quickly met with a complaint to the ABAC Complaints Panel by the Alcohol Policy Coalition (APC).

The APC is a public interest group made up of various entities including the Australian Medical Association (Victoria), the Royal Australasian College of Surgeons and the Uniting Church, whose self-expressed purpose is to address "concerns about alcohol misuse".

It was up to the ABAC Complaints Panel to determine whether Woolworths had acted in breach of the Code.

case a - The case for the Alcohol Policy Coalition

case b - The case for Woolworths

  • Recent research shows that 55% of the audience of The Simpsons is under drinking age (18).
  • An alcoholic product that is branded in the get-up of The Simpsons' Duff Beer will be instantly recognisable and highly appealing to children and young people under the legal drinking age.
  • The product will appeal to children regardless of whether or not it is overtly promoted in conjunction with The Simpsons cartoon or characters.
  • The advertisements for Duff Beer are therefore in breach of the Code.
  • The Code does not apply to the packaging of products which were in production prior to 31 October 2009. The "Duff Beer" brand was launched and promoted in 1995 by two other companies, Lion Nathan and South Australian Brewing Company, so our product could not in itself be in breach of the Code.
  • All of the product's marketing simply depicted the beer in a can. There was no depiction of anyone consuming the beer, or of it being in any environment outside the photo of the product itself.
  • Other than on the packaging of the beer itself, the words "The Simpsons" or any character from The Simpsons are not being used in any of our marketing.
  • The product would be attractive only to adult and long-term fans of the show, who would understand the Duff Beer connection.

So, which case won?
Cast your judgment below to find out

Vote case A – the case for the Alcohol Policy Coalition
Vote case B – the case for Woolworths

Nathan Luke
Intellectual property disputes
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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