Sarita / Distell / 13058
Ruling of the : ASA Directorate
In the matter between:
Distell Group Limited	Complainant(s)/Appellant(s)
South African Breweries Limited	Respondent

08 Mar 2010

BACKGROUND
On 15 July 2009 the Advertising Industry Tribunal “(AIT)” found that the Sarita bottle labelling contravened Clause 2 and Clause 4.2.1 of Section II of the Code, as it created a misleading impression that the product was a cider, when in fact it was an ale.

In an addendum to the above ruling, issued on 20 July 2009, the respondent was ordered to withdraw the Sarita labelling within the deadlines stipulated in Clause 15.3 of the Procedural Guide, i.e. within three months from the date of the addendum.

SUBSEQUENT TO THE RULING
On 8 February 2010, the complainant lodged a breach allegation against the Sarita bottle labelling. It was submitted that the respondent has effected minor changes in the packaging of Sarita. The wording “...apple ale expertly blended from a medley of fine apple varieties” has been amended to “...apple ale expertly blended with a medley of fine apple varieties”.

The complainant submitted that Sarita packaging is still misleading and that the minor change to the packaging does not address the ruling. The label, viewed as a whole, still creates an overwhelming impression that Sarita is made from apples. Furthermore, the respondent is acting mala fides by only changing the packaging and not the primary label of Sarita.

A copy of the packaging was attached to the breach allegation.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE
Given the breach allegation, Clause 15 of the Procedural Guide (Enforcement of rulings) was taken into account.

RESPONSE
The respondent submitted that the complainant has objected to the change of the wording on Sarita product, which it cited as being a change from “apple ale expertly blended from a medley of fine apple varieties” to “apple ale expertly blended with a medley of fine apple varieties”.

The new wording is “Sarita Ruby Dry is a blush pink apple ale expertly blended with a medley of fine classic apple varieties.” The respondent submitted that there is no basis for the complaint concerning the amended label, particularly as the amendment was made in the light of legislation and the comments in the Advertising Industry Tribunal (AIT) ruling of 16 July 2009.

It was stated that where the legislation makes it clear that a business can refer to a product by a specific name, such as “ale”, it is not necessary for the producer to indicate all ingredients. There is an inherent right of a producer to use a product designation that is recognised by Statute. It would be unreasonable and unjust for the ASA to usurp the function of the legislature and force producers to include details of the ingredients when the law dictates what is required.

The respondent submitted that when producers add ingredients to commercially available products, they often use “with” as an indication that the products have additional ingredients, such as “with aloe vera” in the case of soaps and cosmetics.

The same applies here. The consumer is informed that the product is ale, a term accepted by the Statute, and that it is “blended with” apple varieties. In that context “blended with” cannot mean “blended from” or “made from”. No reasonable consumer could be misled.

It was submitted that it is conventional throughout the industry for producers to include pictorial representations of fruits to indicate the primary flavour or an ingredient in foods and beverages, whether or not the product is made exclusively from the fruits that are depicted.

The crux of the initial ruling, in addition to the use of “ale” without reference to barley and the colour of the product, related to the wording. The emphasis was, particularly, on the inclusion of the word “from” as indicating the ingredients from which Sarita product was made. The revised wording correctly indicates that the product is blended with and not from apples.

Taking into account that the product does not look like a cider but like a fruit beverage, many of which are available, that an ale is, by law, a specific type of product, which is not made from apples. The use of the word “with” can only mean that the apple varieties are blended with it to provide flavour.

ASA DIRECTORATE RULING
The ASA Directorate considered all the relevant documentation submitted by the respective parties.

It is firstly noted that the Directorate is only tasked with determining whether the respondent is in breach of the previous AIT ruling.

Clause 15.1 of the Procedural Guide states that “The responsibility for adherence to a ruling made by the Directorate or the ASA Committees lies with the person against whom such ruling has been made.

The Directorate therefore had to determine whether the respondent’s packaging amounted to the breach of the previous ruling.

The complainant argued that Sarita packaging is still misleading and that the minor change does not address the ruling, and the label creates an overwhelming impression that Sarita is made from apples.

The respondent, on the other hand, argued that legislation makes it clear that a business can refer to a product by a specific name and it is not necessary for the producer to indicate all ingredients. The wording indicates that Sarita is blended with and not from apples.

The respondent’s revised wording on the label and / or packaging had substituted the word “from” with the word “with”. According to Pocket Oxford Dictionary Thesaurus & WordPower Guide, the word “from” means indicating the starting point, source or cause whereas the word “with” means accompanied by; in the same direction as; having and using.

In light of the meaning of the two words, it is the Directorate’s view that the respondent revised wording, “with”, has materially changed the underlying take out of the statement to indicate that, Sarita Ruby Dry is a blush pink apple ale expertly blended with a medley of fine classic apple varieties, or is a product having accompanied by a medley of fine classic apple varieties.

Considering the labelling as a whole, the hypothetical reasonable person will understand that Sarita is blended with apples and not produced from apples as the previous label was. Therefore it is true that Sarita is blended with apple varieties.

Therefore the Directorate believes that the respondent is not in breach of the previous Advertising Industry Tribunal ruling and not in contravention of Clause 15 of the Procedural Guide.

The breach allegation is dismissed.