An agreement between the Victorian Commission for Gaming and Liquor Regulation and the Alcohol Beverages Advertising Code has banned brewery Howler’s chocolate milk stout, after complaints around the beer’s packaging.
The brewery’s products are generally made to appear as other popular products, with some packaged after Instagram, Sprite or, in the case of the banned beer, Milo.
ABAC received a complaint in May of 2020, when a customer’s child mistook the beer for a sealed can of Milo. The complaint brought to light that Howler’s product design could reasonably be thought to be in breach of the code, which states marketing communication cannot ‘appeal to minors’ – using brand identification, including logos, used primarily on people under the age of 18.
Milo is typically marketed toward kids, and the Howler Stout is clearly modelled after the drink’s iconic can.
Brisbane IP law firm Eaglegate Lawyers principal Nicole Murdoch said manufacturers need to take into account how kids will interpret their packaging.
“What may be a sales gimmick in situations like this raises safety and misleading and deceptive conduct issues,” Murdoch said.
“If the packaging looks like Milo down to the same colour and logo style, kids are going to assume it’s Milo and safe to drink.”
In their response to the ABAC investigation, however, Howler disagreed, believing the industry already has protections against underage drinking and that, ultimately, the situation could have been avoided had the parent explained to the child what the drink was.
“A simple act of explaining that is not Milo, but a can of stout. A drink that you will in no way enjoy, and if you do open it you owe me $8 as they are bloody expensive,” the brewer said in June 2020.
“We have not aimed our beer at children, simply, and nor do we believe our label will encourage a child to start drinking.
“This [investigation process] is grossly unfair to the defendant, as one complaint from what could be a disgruntled customer… can derail a whole product’s design. How can they hold all the power? They can completely change a name, look and marketing of one of our products – why?”
ABAC ultimately decided against Howler and told the business it can no longer brew the beer in its current form, though Howler had already stopped making the brew.
