​Does the ABAC Adjudication Panel takes into account the 5 Ps (Product, Price, Placement, Promotion, People)?
Yes and No.  It takes into account ‘Promotion’ and ‘Placement’, but not the other 3 Ps
The Code is designed to regulate marketing communications, and whether they are consistent with the ABAC standards.  So ‘Promotion’ is a big one that is focussed on.
 ‘Placement’ is taken into account in terms of TV advertisements not being allowed to be placed during children’s viewing times, and requiring age gate controls to be applied to social media, and requirements about % of viewers of other advertisements being over 18.
Placement was also relevant in the recent Heineken 0.0 advert – which was OK’d by pre-vetting in a print magazine, but then held not to be OK by the Adjudication Tribunal on an outdoor advertisement where people would be driving quickly past and not have a chance to read the fine print.
When the complaint has related to a product’s packaging, a number of producers have tried to rely on ‘Placement’ being effectively within a physically age-gated place, being the bottle shop or pub, where minors are not allowed to be present.  ABAC have regularly refused to accept this.  (Certainly some licensed cafes and other establishments will permit minors to be in the area where alcohol is displayed and sold.)
But Price, Product and People are not relevant.  Even though minors are unlikely to enjoy the taste of beer on most occasions, and certainly unlikely to appreciate say a barley wine or a Black, this is not relevant in front of ABAC.  The same goes if a can or bottle was priced at $100 – this would be irrelevant for ABAC purposes.

James Omond gives a detailed insight into what the negotiations between Australia and the EU over protection of geographical indications (GIs) for foodstuffs could mean for the beer industry.  And at the end of the interview - more discussion of the use / misuse of pop culture references in labelling.
https://www.brewsnews.com.au/2019/09/28/brews-news-live-brewcon19-james-omond/
​You can also download the podcast for later consumption!

The ABAC Adjudication Panel has found another social media post involving a skateboard to be in breach of the ABAC Responsible Alcohol Marketing Code.
 
The latest case involved a Facebook post to a closed industry forum - ‘WA Bartenders’ and ‘WA Restaurant Staff’.  The post was made by the producer’s distributor in WA:

​The complaint was made on 2 bases – the reference to “healthy drinking”, and the depiction of “a woman about to ride a skateboard”.
 
The first element was dismissed, but the second was upheld on the basis:

​ 
That complaint was upheld on 3 grounds:

1. The skateboarder appears to be under the age of 25 years old (the brewer did not respond, so there was no proof either way);
2. The use of a young male skateboarder as the central character in the post was “likely to strongly resonate with males under the age of 18”; and
3. Age restriction controls on the Facebook page were not operating at the time of the post.

 
The full decision can be read here.
 
The moral of the story is that alcohol producers need to be eternally vigilant as to what images are posted online that promote their product – and not just by the producer but also their agents, distributors, etc.

Terrific, well-researched and well-written article by Will Ziebell on The Crafty Pint exploring the issues around the use of names and images of films, characters, confectionery, etc.  Not sure he mentioned song names, but the principles are the same.
This is well worth a read.
​

The 2nd quarter of 2018 has been a busy time for the Alcohol Beverages Advertising Code (ABAC) Scheme.
In ABAC’s own words, it “has seen an unusually high number of breaches of the ABAC Code”.
It would appear that this has come about through the increasing use of inexpensive social media campaigns, especially by liquor retailers, combined with a lack of knowledge of the restrictions in the ABAC Standards.
Also, whilst on the face of it, ABAC Standards only apply to companies and organisations who are signatories to the Code, in one case the advertiser (Premix King Ascot Vale) did not respond to ABAC, and did not remove the Facebook post which was the subject of the complaint, and as a result the breach has been referred by ABAC to the liquor regulator (VCGLR), which is investigating.
And for smaller producers who aren't signatories, they need to bear in mind that the major chains are signatories, so they won't stock any products which aren't ABAC-compliant.
So what were all these breaches?
Three of the breaches involved the use of images of people under 25 years of age on social media (the ABAC standards require models in alcohol advertisements to be at least 25 and appear to be adult) – and in some cases the posts were those of social media influencers.
Some of the complaints also involved failure of advertisers to engage appropriate age-gating controls.
In one instance, the post (below) referred to an alcohol product leading to a loss of dignity, which was a breach because it suggests excessive alcohol consumption and irresponsible alcohol related behaviour. 

​​Another post (right) breached the Standard
which prevents marketing of alcohol which
encourages excessive consumption of alcohol,
or which suggests that the consumption of alcohol
​offers a therapeutic benefit.  

In a case involving a producer’s social media marketing, Gage Road’s Alby Beer facebook page failed to apply age restriction controls, and a marketing post depicted a young male (under 25 years and possibly under 18 years) skateboarding as the central character -resulting in the finding by ABAC that the post was likely to strongly resonate with males under the age of 18 .
​

Other complaints included:

• 5 Seeds Cider re-posting a social media influencer’s post which featured a woman aged 23 years of age
• Marketing of a Jack Daniels & Cola pre-mix can by a retailer as a ‘Mega can’ (breach for encouraging excessive consumption), and ‘perfect for long drives’ (I don’t even need to comment!!)
• Cheeky Monkey’s ‘Ri-beer-na’ Berliner Weisse produced for Good Beer Week found to be in breach for having ‘strong or evident appeal to under 18s or creating confusion with a soft drink’

 Two St Louis (Missouri, USA) craft beer producers have settled their trade mark litigation over the use of a lightbulb on tap decals and other marketing collateral.
 As would have been expected by anyone familiar with TM law, the brewer with the trade mark registration triumphed.
 Side Project Brewing opened in 2013, and filed to protect its name + logo that year:

Modern Brewery opened the following year, but the owner claimed he had “come up with the lightbulb design years before we ever brewed a drop of beer”, and also claimed he had several conversations with Side Project’s founder before either brewery opened.  He said the cost of litigation was why he settled.
The moral of the story is you need to file for trade mark protection as soon as possible.

See http://bit.ly/2xaVaIj for a local press report of the settlement.

Australian Beverage Trade Marks’ founder, James Omond, discusses the ins and outs of trade mark protection for independent brewers with Matt Kirkegaard and James Atkinson in the ‘Beer is a Conversation’ podcast – listen below, or check out the Brews News website at: 
https://www.brewsnews.com.au/2017/09/29/beer-conversation-james-omond/
​You can also download the podcast for later consumption!