Before shops were issued with a retailer alert bulletin telling them to remove cans from their shelves, AB-Inbev announced it would be withdrawing the product itself, as the first brewer to sign up to a pledge on superstrength beer and cider packaging under the Responsibility Deal with government.
Describing the situation as a can of worms is irresistible. While the Portman Group insists that the ruling applies only to the AB-Inbev brand, it seems inevitable that health lobbyists and others will make complaints against similar products, and may even try to extend the logic of the decision to other drinks. Already, brewers that have not signed the pledge to axe single-serve cans of more than four units are reviewing the packaging of their strong beers.
So what was the logic of the decision? After all, a similar complaint against Tennent’s Super had been overruled by the panel in 2008.
The first point made is that 50cl of the 9% abv beer amounts to 4.5 alcohol units – half a unit above the government’s recommended daily limit for men. The clincher, though, was the type of container. Once opened, the panel felt, “the product quality would degrade quickly” and “it was reasonable to expect that the contents would be consumed by one person in one session”.
It was this combination of factors that led the panel to conclude that “the product packaging did encourage immoderate consumption” and was therefore in breach of the code.
But why hadn’t a similar conclusion been reached in 2008? This is where it gets interesting.
Six years is a long time in politics – long enough not only for the panel to comprise completely different people, but for the world beyond the Portman Group’s doors to change.
The panel “considered that it should be responsive to changes in the prevailing climate in society and, in particular, to the growing focus by local authorities on products that were believed to be disproportionately consumed by problem drinkers”.
This is an implicit reference to the “voluntary” retailer superstrength bans initiated by police and local councils that have swept the country over the past year or so under the heading Reducing the Strength.
Portman Group chief executive Henry Ashworth, who acts as secretary to the independent complaints panel, feels it was not bound by the earlier precedent.
“The context had changed,” he said. “The panel was very aware of the various Reducing the Strength schemes. It was one of the issues that had an influence on the decision. And it also reflected a later precedent, the Crunk decision.”
So perhaps we should have seen it coming.
In 2012 the panel found against Crunk Juce, a 12% abv alcoholic energy drink then being sold in pint cans. The fact that it contained 8.4 units of alcohol meant that it encouraged irresponsible or immoderate consumption, the panel ruled.
As a result, the brand was relaunched as an 8.45% abv product in a 47.3cl can, bringing it down to four units.
What fresh precedent does the Tennent’s Super ruling set? Ashworth stresses that it’s only that brand in 50cl cans that’s immediately affected, “but it’s likely that the panel would be consistent and make the same ruling against a similar product, if it’s in a can containing more than four units, and if a complaint is made against it”.
He didn’t think too much could be inferred beyond that, though. “The same liquid in a screwtop bottle, for instance, would be OK because it’s resealable.”
However, the decision has raised questions for many.
Such as, does a 9% abv beer really deteriorate when left opened overnight in a fridge? What about couples who share a can between them?
As watchers of the craft beer scene would have noticed, cans are in fashion for upmarket brands, and how about a 9% abv craft beer served on draught in a bar? Should that be allowed to be served in pints? While many people may suggest that it’s not merely strong beer but cheap strong beer that’s the target, the complaints panel does not take a view on price. That’s beyond its remit.
And where does it leave those large plastic bottles of cider? They’re resealable but still identified as a “problem”.
Then there are the legal questions. Would a ban on these products amount to a restriction of retailers’ trade? And what might the European Commission say? It has already blocked a move by Lithuania to introduce what looks like a very similar measure (see box).
Perhaps all this only illustrates the difficulty of trying to deal with the issues relating to the behaviour of a certain group of people by regulating what they happen to be drinking. You can’t quite get it to match up.
There is also no doubt that industry initiatives to tackle irresponsible or harmful drinking, however honest, are tangled up in the relationship with government, with the need to show that the industry can self-regulate effectively.
This is no straightforward task, as Ashworth appreciates. He’s an enthusiast for the Responsibility Deal, under which AB-Inbev made the pledge to review the Tennent’s Super packaging.
“I believe the packaging pledge is a better way forward for local authorities looking to help street drinkers,” he says. “It’s a proportionate solution.
“And the latest summit with government was an example of unprecedented cooperation and came up with a comprehensive package.
“It was a very good outcome that demonstrated the industry is a committed, willing partner.
“But the pledges are very complex and companies have a lot of careful calls to make. It’s hard to make collective pledges, but the can pledge, for instance, allows organisations to make their own decisions and achieve them in their own way.”
In fact, so far only one producer, and that’s AB-Inbev, has actually signed up to the packaging pledge, along with two supermarkets, Morrisons and Tesco, which have taken 50cl superstrengh cans off their shelves.
Yet Carlsberg UK and Brookfield Drinks, while not actually signing anything, now say they are looking at the packaging of their 9% abv products, Carlsberg Special Brew and Kestrel Super respectively.
The worry must be, though, that the industry response to the issue has become disjointed.
There is confusion. And the British Beer and Pub Association has received the complaints panel’s decision coolly.
“We are looking at the ruling in order to understand any broader implications and have sought some points of clarification with the Portman Group,” said chief executive Brigid Simmonds.
“Until we have a clear understanding of its wider impacts, we won’t be commenting in any more detail on the ruling.”
An AB-Inbev spokesman said: "We brew all our of products to be enjoyed responsibly and most people do that. While we recognise that a minority do not, we believe that tackling alcohol misuse is much more complicated than targeting individual products. However, we do acknowledge the concern that has been expressed about a single-serve container, such as a can, containing more than the number of units a man is advised regularly to consume on a daily basis. It is for this reason, and in the spirit of our commitment to working in partnership with government, that we have taken the decision not to produce and sell the 50cl can of 9% abv Tennent’s Super after the end of 2014."