ABAC panels have ruled against the packaging of a Joker-themed beer from Grand Ridge Brewery and Fixation Brewing Company’s Squish Citrus IPA, as well as an advert for Lion’s Heineken 0.0 alcohol-free brand.

After announcing that packaging complaints had skyrocketed in the last quarter, ABAC published the details of the judgements, the first two of which relate to the code’s clause prohibiting alcoholic beverages from having any evident appeal to minors.

Both the packaging and name of Grand Ridge Brewery’s Joker & the Thief beer was analysed by the panel after a complainant wrote in that they were concerned that the cartoon of the Joker character was “clearly aimed” at an under-18 demographic.

Grand Ridge responded to the complaint by saying that it is a “responsible producer in all ways possible” and that its target audience is craft beer enthusiasts with “well developed palates” with an age range between 30 and 70.

The Victorian brewery argued that the Joker is depicted in an ‘adult-oriented’ style and was not supposed to be directly related to the DC Comics character, featured in a series of films including the 2008 film The Dark Knight or this year’s Joker, an origin story film, but was in fact based on Australian rock band Wolfmother’s 2005 ballad of the same name.

The brewery reiterated that it would never purposely produce packaging which would appeal to children, and that the packaging was finalised before the Jedi Juice ruling earlier this year.

“We hope the panel sees this label in the spirit and intent with which it was created and that the result is satisfactory and we look forward to working with the ABAC in the future,” it said in a statement detailed in the ABAC ruling.

Grand Ridge said it would look at new artwork for future runs if ABAC maintained its stance after a review process.

In its determination, the panel said that while there were differences in the depiction of Grand Ridge’s Joker to that of the DC Comics character, there were stylised elements such as the face of a woman similar to the Joker’s love interest Harley Quinn, the exaggerated red-coloured smile of the character and ‘HA HA HA’ text next to the figure on the can.

ABAC referred back to the Jedi Juice ruling, saying that the Batman franchise does not have the cultural impact of Star Wars and that the appearance of the Joker does not automatically mean that the product had a strong or evident appeal to minors.

However, it said it would be understood by a ‘reasonable person’ that the Joker character depicted was derived from the Batman franchise and is likely to be easily recognised across all age groups, including the under-18 demographic.

ABAC said it was not clearly enough identified as an alcoholic beverage as the term IPA is not necessarily understood by a wide demographic, and the mentions of its style and abv are “obscured with graphic design features”.

The panel said that some references to it being an alcoholic product were in small text on the back or side of the can and therefore not obvious to a casual observer, and that the 375ml can size is the same as that used by many carbonated soft drinks.

The ABAC panel said that it had made a provisional determination against the packaging, saying it was a breach of the code. It said Grand Ridge had not responded to the determination and that the time limit on seeking a rehearing had expired.

Its final ruling declared that the packaging and product name was a breach of the code, saying that the overall design, colour and imagery is “powerful and emotionally engaging” and likely to have appeal beyond an adult audience.

Grand Ridge were contacted for comment but did not respond by the time of publication.

Fixation Brewing Co’s Squish Citrus IPA also faced a complaint that was subject to an adverse finding.

A complainant argued that the product’s packaging made it appear like orange squash and alleged that the name was “clearly intended to be misread as ‘squash’”.

The well-informed but anonymous complainant highlighted that alcoholic beverages must not be packaged in a way that makes them look like a beverage likely to be consumed by minors.

In an extensive rebuttal letter, Fixation said that the consequences of an adverse ruling on Fixation would be “significant” as it would be obliged to remove one of its core products from the market, as opposed to removing a single advertisement or campaign.

It argued that orange squash is not a product familiar to Australians (being a more widely used term in the United States), going so far as to list an AU domain search which showed that of 83 results most are related to a squash club in the NSW town of Orange.

Fixation compared the complaint with a previous one for Cheeky Monkey’s Ri-beer-na. It highlighted ABAC’s argument at that time that while a product or packaging might have consequential or residual appeal to children or adolescents, it is not sufficient to determine a breach of the code, also citing past rulings on Jedi Juice and Skinnygirl.

Fixation said that it was clear the product was an alcoholic beverage, and any mentions of its fruit content coincided with references to the hops used in the beer, thus clearly identifying it as alcoholic.

It also argued that due to the proliferation of craft beer in Australia, not just in the independent sector but through brands from the major brewers Lion and CUB, the broader population is aware of other styles of beer including IPAs, not just traditional styles such as lager, ale and bitter.

Fixation said that it was not a member of any alcohol beverages manufacturing and marketing industry associations that are involved in the operation of ABAC and is not bound to comply with decisions of the panel.

However, it said, Squish is sold through chain liquor retailers, including Dan Murphy’s and First Choice, whose parent companies are signatories of the scheme.

ABAC said Fixation’s response was “very detailed and thoughtful”, that the brewer had shown it wanted to market its products in line with ‘community standards’ and had cooperated with the panel processes.

It said, in a two-pronged decision, that the Fixation Squish name does not have an evident appeal to minors, nor by itself could cause confusion with a soft drink. Therefore it ruled that the name of the beer was not in breach of the code.

However it said that the packaging of the citrus IPA did breach the code, because a ‘reasonable person’ would not examine the can of the IPA in great detail, missing the cues about it being an alcoholic beverage, despite the “small print mentions of ‘beer’”.

It said a combination of the colouring of the packaging and the larger design graphics, along with its product name and visible messaging, would mean that a reasonable viewer might think it is a soft drink. The overall impression is of a soft drink, it said, which is likely to be strongly appealing to minors.

Tom Delmont, managing partner of Fixation, said that Squish, an AIBA gold-medal-winning beer, had been seasonal before becoming part of the IPA specialist’s core range.

“In short, whilst the Fixation team are disappointed, we respect the decision of the ABAC panel and are already taking the necessary steps for future approval and compliance with the ABAC code.”

An additional ruling related to Heineken 0.0, which was pre-vetted by ABAC.

Another well-informed complainant said that the non-alcoholic beer was a “clearly a brand extension” of the Heineken alcoholic beer brand.

The complainant said that the beer branding is similar to that of a normal beer, and alleged that it was “impossible” to tell from looking that it promoted a 0 per cent alcohol product – therefore, it said, the code should apply to the advertising for the brand.

“The ad is very concerning as it is promoting that people can drink Heineken beer before driving breaching Part 3(d) of the ABAC Code and muddying all the anti-drink driving education we have had,” the complainant said.

ABAC signatory Lion, the Australian distributor and brewer of Heineken, responded to the complaint saying that alcohol-free beers are not considered an alcoholic beverage as defined by ABAC and therefore is not under its jurisdiction. However it conceded that the marketing of Heineken 0.0 is a brand extension and must conform to certain areas of the code.

It argued that the prominence of the references to Heineken 0.0 as an alcohol-free drink, and the growing proliferation of the no-alcohol category within the beer sector meant that Australian consumers would not confuse the advert with one for normal alcoholic beer.

Lion said that contrary to the complainant’s argument that non-alcoholic beer “muddies the waters” or creates confusion in regard to not drinking and driving, the advertisement relies on the idea that Australian consumers already know that it is unsafe and illegal to drive during or after consuming alcohol.

ABAC reiterated, as it has done in past rulings, that its standards sit “awkwardly” when it comes up against a non-alcoholic brand extensions of alcoholic drinks.

It said the requirement is for marketers to convey the message that the product is non-alcoholic and can be consumed in different situations where an alcoholic beverage would not usually be allowed.

However, despite the advert being pre-vetted, ABAC upheld the complaint against Lion.

It said that the context of the advertisement was the issue. It said that it could be expected by a reasonable person that a motorist or passenger passing the advertisement would only get a quick impression of the ad, and would not be able to study it in “fine detail”.

The ABAC panel said that if it was in a print magazine, where there was time for a viewer to look at it in more detail, it may not have been a breach of the code.

The panelists said that the ad needed to be assessed on its own content and it wasn’t enough that it was part of a wider “Now You Can” campaign from Lion, espousing the activities you can do while drinking non-alcoholic beer, as it could not be expected that the average consumer would be well acquainted with the campaign.

View the rulings here.