Do candy canes have special attractiveness to kids? That was the issue in a recent decision issued by the Distilled Spirits Council of the United States.
The DISCUS Code of Responsible Practices for Beverage Alcohol Advertising and Marketing prohibits distilled spirits marketers from advertising their products to underage consumers. According to the Code, advertising and marketing materials should "primarily appeal" to people who are at least 21 years old. Materials are considered to "primarily appeal" to underage consumers "if they have special attractiveness to such persons beyond the general attractiveness for persons of legal purchase age."
Sazerac's Fireball Whisky brand ran a promotion featuring candy cane shaped packaging. Apparently, the company sold big plastic candy canes that included small bottles of the whisky.
An industry member complained to DISCUS, arguing that the use of the candy cane themed packaging violated the DISCUS Code, on the grounds that it has primary appeal to minors. Sazerac vigorously disputed the complaint.
The DISCUS Code Review Board said that reviewed the parties' arguments and could not reach a majority decision about whether the promotion violated its Code. (It didn't share any more details about what the specific areas of dispute were.) In accordance with the DISCUS Code procedures, the complaint was then forwarded to the DISCUS Outside Advisory Board for its own review.
The Outside Review Board determined – without sharing its reasoning -- that the promotion did not violate the DISCUS Code, holding that the Fireball packaging did not have special attractiveness or appeal to individuals below the purchase age. The Board said, however, that "caution was warranted when using holiday or candy themed packaging to ensure the elements of the packaging, such as coloring and related imagery, do not have special attractiveness to underage individuals."
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.