For Halloween, the Sazerac Company launched a Halloween-themed promotion which entailed selling "adult trick-or-treat" bags filled with miniature bottles of its Fireball whisky. Another spirits company complained to the Distilled Spirits Council of the United States, arguing that the promotion violated DISCUS' advertising guidelines.
The DISCUS Code of Responsible Practices for Beverage Alcohol Advertising and Marketing provides detailed guidance to distilled spirits marketers on how to advertise their products responsibly. The Code includes specific requiements on not creating marketing materials that appeal to underage drinkers. For purposes of this promotion, there are two relevant provisions:
- Responsible Content Provision A(1) provides, in relevant part, that, "The content of beverage alcohol advertising and marketing materials should primarily appeal to individuals 21 years of age or older."
- Responsible Content Provision A(2) provides that, "Marketing that primarily appeals to individuals under the age of 21 is inappropriate. Advertising and marketing materials are considered to 'primarily appeal' to persons below the legal purchase age if they have special attractiveness to such persons beyond the general attractiveness for person of legal purchase age."
The challenger here argued that the Fireball promotion violated both of these provisions because the packaging -- which includes pumpkins, dragons, and the words "trick-or-treat" -- is "very similar to Halloween graphics typically seen on other Halloween consumable products, like large bags of candy, that have special attractiveness to persons below the legal purchase age." The challenger also pointed to the fact that the display uses the phrase, "Fireball Candy Pack," which it says, "further exacerbates the violation, as a minor seeing this would see it as Halloween 'candy' that is safe to consume."
Sazerac strongly disputed the allegations, arguing that the packaging appeals to adults and does not bear any primary appeal or special attractiveness to underage drinkers.
After considering both parties' arguments, the DISCUS Code Review Board determined that the promotion did, in fact, violate the DISCUS guidelines.
The Board held that, when viewed all together, "the packaging resembling a Halloween candy bag traditionally used for 'trick or treating,' the use and large font size for the term 'trick or treat,' and the large depiction of a jack-o-lantern create promotional material that is primarily appealing to those below the legal purchase age." The Board also determined that the use of the word "adult" before "trick-or-treat" did not take away from the fact that the packaging appeals to children.
While the Board acknowledged that adults celebrate Halloween too, the Board explained, "the tradition of 'trick or treating' with bags of candy is primarily centered around children and this promotional material invoked and shared similar attributes to Halloween 'trick or treat' marketing generally targeted to children."
Finally, the Board noted that even though the use of Halloween imagery or terminology is not, by itself, a violation of the DISCUS guidelines, "caution should be exercised when using such material to ensure they do not primarily appeal to individuals below the legal purchase age."
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