The ARB’s sobering decision on “non-alcoholic” beverages

The ARB’s sobering decision on “non-alcoholic” beverages
28 Oct 2019

Ever wondered why non-alcoholic beer advertisements still use the disclaimer “Not for sale to persons under the age of 18”? A matter concerning the Savanna Non-Alcoholic Lemon Cider might have the answer.

Beer manufacturers such as Heineken, Castle and Savanna, are now jumping on to the bandwagon of creating “non-alcoholic beers”. This now raises the question as to whether these “non-alcoholic” beers are really what they purport to be.

A Consumer Complaint was filed against Distell Limited’s (‘Distell’) television commercial of its Savanna Non-Alcoholic Lemon Cider where the Advertising Regulatory Board (‘the ARB’) had to determine, inter alia, whether:

  • the Savanna Non-Alcoholic Lemon Cider was misleading in that it in fact contained 0,03% alcohol; and
  • the use of “Not for sale to persons under the age of 18” was misleading and dishonest, and that it constituted an admission that the product actually contained alcohol.

The ARB agreed with Distell’s assertions that, in terms of the Liquor Act, an alcoholic beverage is defined as a product which contains more than 1% of alcohol by volume. Furthermore, the Foodstuffs, Cosmetics and Disinfectant Act permits one to define a product as “non-alcoholic” and “alcohol free” if it contains less than 1,2% and 0,05% of alcohol by volume, respectively. This is subject to the alcohol content being declared on the product packaging itself.

The ARB found that Distell’s Savanna Non-Alcoholic Lemon Cider product fell within the boundaries of legislation.

Whilst it could be accepted that the product may have complied with the legal requirements, it did not necessarily mean that consumers were not being misled by claims of being “non-alcoholic” or “alcohol free”.

The ARB took cognizance of the fact that “… some consumers will not wish to drink even trace amounts of alcohol – including alcoholics and people who do not drink for religious reasons”. The ARB further pointed out that this case pertained to a television commercial which did not afford a consumer the opportunity to peruse the product packaging themselves for clarity on the alcohol content that the product contained. It is on that basis, that the ARB was of the view that Distell’s television commercial of its Savanna Non-Alcoholic Lemon Cider was misleading.

In addition, the commercial itself used the phrase “Savanna with no alcohol. Breaks all the rules”. The phrase “no alcohol” is not regulated by legislation, despite it being conceptually similar to the phrases “non-alcoholic” and “alcohol free”. The ARB found that the use of the phrase “no alcohol” in Distell’s television commercial went beyond what is permitted by law and found it to be misleading within the meaning of Clause 4.2.1 of Section II of the ARB’s Code of Advertising.

Regarding whether Distell’s use of the phrase “Not for sale to persons under the age of 18” was misleading and dishonest, the ARB found that Distell’s use of this responsible message “… cannot be viewed as an admission that the product is actually an alcoholic product …. It is rather an indication that the respondent [Distell] is promoting the product to adults in line with the requirements of the Code and was also an indication of an intent to avoid underage appeal to the Savanna brand as a whole”.

Conclusion

The ARB’s decision in focusing on the television commercial itself (and not just the product packaging) is to be welcomed, for the reason that it aims to bring the laws regulating liquor products in line with the objects and purport of the Consumer Protection Act – which is to protect consumers from being misled by such claims.

So, the moral of the story is this: Before taking a sip of a beverage which contains claims such as “non-alcoholic”, “0% alcohol’ or “alcohol free”, consult the product packaging first to determine whether traces of alcohol are in fact present.

See also:

 

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Koketso Molope
Koketso Molope

Koketso is an associate in our intellectual property law department based at the Melrose Arch office in Johannesburg, with a special focus on intellectual property litigation. Koketso obtained her B.A. and LL.B degrees from Rhodes University and was admitted as an attorney in 2018. During this time she has handled a broad range of IP related matters including: trade mark prosecution and litigation; involvement in litigious matters in various Sub-Saharan African countries pertaining to copyright disputes, advertising regulatory disputes, unlawful competition and passing off, drafting and negotiating settlement agreements; providing opinions on consumer protection laws; and advising on food labelling laws and regulations.

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