"Social lube" and milkshakes: the dangers that lie in naming a beer

By Ian Bloemendal, Nick Josey
06 Feb 2020
To avoid the cost and potential public relations embarrassment or backlash that may follow from failing to comply with the ABAC Code, producers and their marketing teams ought to take three basic steps.

The craft beer market in Australia is growing exponentially, with new brewers and breweries opening (it feels like) on an almost weekly basis. One outcome of an increase in the number of participants in the market is an increase in competition. As such, advertising and marketing of the products being sold becomes a key battleground for differentiation.

In Australia, the advertising of alcoholic beverages is subject to a quasi-regulatory system that often involves independent examination of proposed alcohol marketing communications (placement and content) to ensure that it complies with the ABAC Responsible Alcohol Marketing ABAC Code. The ABAC Code outlines the standards for alcohol marketing in Australia, and applies to print, billboard, digital, cinema, television, producer point of sale, packaging and all other forms of marketing around alcohol. In recent months, the ABAC adjudication panel has been called upon to determine complaints over the name, packaging and Instagram posts of a South Australian brewery's advertising and marketing of two of its products, which were not the subject of pre-vetting by the Panel and which:

  • suggested that alcohol is a mood enhancer; and
  • were seen to evident appeal to minors through a potential confusion with a soft drink (milkshake).

What is the ABAC Code?

As outlined above, the ABAC Code sets standards for alcohol marketing in Australia. It is designed to ensure that alcohol is marketed in a responsible manner, and is broken down into four sets of standards:

  • responsible and moderate portrayal of alcoholic beverages;
  • responsibility towards minors;
  • responsible depiction of the effects of alcohol; and
  • alcohol and safety.

The ABAC Code is operated and managed by a management committee comprised of representatives from the various associations within the industry including the Brewers Association of Australia, and Australian Grape and Wine.

Where either the management committee, or a member of the public, believes that an entity has fallen foul of the ABAC Code, they are able to make a complaint through the ABAC Scheme website, which is then considered and ruled upon by an adjudication panel. For ease of public access, Ad Standards also provides a common entry point for alcohol marketing complaints. Additionally, companies are able to place their advertising or marketing campaign before a pre-vetting committee for review prior to its public release, to seek confirmation that it is compliant with the ABAC Code.

In the event that the panel upholds the complaint, the relevant company must (amongst other things) withdraw, discontinue or modify the marketing in question as soon as possible, and no later than five business days after the panel's decision.

Alcohol as a mood enhancer

Pirate Life Brewing, a South Australian brewery owned by Carlton & United Breweries, recently released a collaboration beer that it had brewed with Riot Wine Co, a South Australian winery that sells its product in both cans and kegs. The beer was a riesling pilsner, and was named "Social Lube - Riesling Pilsener 2019".

Pirate Life did not obtain pre-vetting for the product name or its packaging.

A complaint was lodged with the ABAC Scheme, with the complainant outlining concern with the name of the beer and an associated Instagram post by @piratelifebeer that suggested the product:

"will result in a change in mood or contribute to social success as ‘Social Lubricant’ is a common saying for anything (alcohol, weed, speed dating) that allows people to interact more comfortably in social situations."

Under the ABAC Code, companies must not:

  • suggest that the consumption or presence of an alcoholic beverage may create or contribute to a significant change in mood or environment; or
  • show (visibly, audibly or by direct implication) the consumption or presence of an Alcohol Beverage as a cause of or contributing to the achievement of personal, business, social, sporting, sexual or other success.

Pirate Life submitted the product name did not offend the ABAC Code, and said that the product:

"is a nod to the experience of sharing a beverage with friends in a social situation. The name and packaging of Social Lube is not intended to imply a change in mood or the cause of success, rather it acknowledges the product as being ‘incidental to a friendly and lively social environment’. Furthermore, the name is also acknowledgement of the friendly and collaborative social environment between these two Adelaide based producers."

Pirate Life also said that the product packaging and Instagram post utilised a "demure colour scheme of navy, dark green and white", which did not make any claims that would suggest the product would cause a success or mood change.

On 2 January 2020, the panel issued its final decision on the matter, and determined that the product name was in breach of the ABAC Code. In making this determination, it noted, amongst other things, that:

  • the term "lube" is taken to mean lubricant or lubrication, which would then be reasonably understood to suggest that a substance or activity which assisted a social situation by reducing friction or say making conversation or interactions occur more freely;
  • the notion of "lubrication" having an active impact suggests more than the product simply being incidental to the social setting but goes further to suggest that the product would be a contributor to the success of the social encounter; and
  • this was slightly reinforced by the graphic used with the name, of a drop (presumed to be a drop of the product) above the "u" in the word "lube", establishing that is the product which is the lubrication (see graphic below):

Image of Social Lube 

Marketing to minors

In November 2019, Pirate Life released a milkshake IPA, which was named "Iced Coffee Milkshake".

A "milkshake IPA" is a sub-style of the New England-style IPA, with lactose added to it to create a creamy, full-bodied texture. They can also often contain fruit and adjuncts like vanilla.

Pirate Life did not obtain pre-vetting for the product name or its packaging.

A complaint was lodged with the ABAC Scheme, with the complainant alleging that the name of the beer and an associated Instagram post by @piratelifebeer associated the beer with Farmers Union Iced Coffee, which is extremely popular in South Australia. The complainant also suggested that the name, style of beer and branding of the beer (which was sea green and white, as per the Iced Coffee), associated the product with a soft drink and would therefore appeal to minors.

Under the ABAC Code, companies must not market alcoholic beverages in a manner that would have strong or evident appeal to minors.

Pirate Life contended that the product name did not breach the ABAC Code. Amongst other things, it noted that the Iced Coffee Milkshake was a limited edition brew, available only in keg format at its brew-pub premises, and it was not distributed throughout the State or country. Additionally, the branding for the beer was not the same as the Iced Coffee logo, and would not cause customers to be confused as to what the product was. Additionally, Pirate Life noted that the Farmers Union Iced Coffee was distributed both to adults and minors, and therefore even if the complainant's assertions regarding the association were correct (which was denied), it would be inappropriate to assert or imply that an iced coffee beverage held a strong or inherent appeal to minors. Coffee, Pirate Life said, was an inherently adult flavour.

On 23 December 2019, the panel issued its final decision on the matter and determined that while the product itself did not breach the ABAC Code, the Instagram post did. In coming to this decision, the Panel noted that:

  • while Iced Coffee and the beer both used a particular colour shade, there was "not a great deal of similarity" between the two brand designs and layouts. Further, given that the beer was only available at the brew-pub in Adelaide, a reasonable person would understand that the branding is related to a style of beer. In contrast, if it was placed on a can in a retail outlet, then it would be more problematic;
  • while the term "milkshake" has been applied to beer, a reasonable person would think a beverage branded as an "iced coffee milkshake" would be referring to a milk-based non-alcoholic drink;
  • in relation to the Instagram post, the predominant branding features involve the Pirate Life logo and the name "Iced Coffee Milkshake", without the alcoholic nature of the product being made prominent. The term "milkshake" was also highlighted through a different font style, which gave emphasis to this feature of the beverage; and
  • the Instagram post, taken as a whole, was considered to have evident appeal to minors through a potential confusion with a soft drink.

Accordingly, while Pirate Life was able to continue selling the product on premise at its brew-pub, its Instagram post needed to be removed.

How can you avoid these issues?

Walking the fine line between what is fun and appealing, and what is in breach of the ABAC Code, can be nuanced and difficult. As the Iced Coffee Milkshake example demonstrates, had the post included a prominent reference to either the word "beer" or the alcoholic content of the beverage somewhere on its Instagram post, there is a possibility that the outcome may have been different. However, to avoid the cost and potential public relations embarrassment or backlash that may follow from failing to comply with the ABAC Code, producers and their marketing teams ought to:

  • consider how a campaign may be perceived by various audiences before proceeding with a beverage name. Does the product label look like something that may appeal to minors? Is the name potentially confusing? Is there data from the Bureau of Statistics that might tend to link the proposed marketing to a youth segment?
  • ensure that it is clear that the product being advertised is in fact an alcoholic beverage. This can be done by including things like highlighting its type (for example, beer) and its alcohol level (the ABV). Had Pirate Life outlined that it was a beer, and that its style was a milkshake IPA, the post may have been perceived differently.
  • consider the platform the campaign is being distributed through. If advertised at the relevant brewery, a private Facebook group or similar, it is less likely to be seen as appealing to minors than if it is published publicly on Facebook, Instagram or otherwise.

Additionally, where a product is to be distributed throughout the country in retail outlets, it may be prudent to take advantage of the pre-vetting service outlined above. While it may incur a slight cost and involve an investment of time, it may help you avoid incidents such as the above.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.