Hard Solo’s sour end prompts regulatory crackdown on alcohol marketing

Liquor & Gaming NSW (L&GNSW) are considering a formal recommendation to ban alcoholic beverages leveraging brand elements of an existing soft drink. The move comes in the wake of Hard Solo’s forced rebrand following a landmark decision by the Alcohol Beverages Advertising Code (ABAC) Adjudication Panel that the lemon-flavoured premix was in breach of the industry code.

L&GNSW is proposing to recommend that the Minister responsible for liquor and gambling declare a class of liquor products “undesirable” under s 86 of the Liquor Regulation 2018 (NSW), which the Minister is empowered to do so pursuant to s 100 of the Liquor Act 2017 (NSW). The class of product being considered by L&GNSW is:

“Any liquor product the lead branding elements of which are that of an established or iconic soft drink brand”.

If declared undesirable, a licensee is liable for punishment of up to 50 penalty units for selling or supplying of any such product.

In their letter to ABAC announcing the proposal, L&GNSW cited the Hard Solo determination as the catalyst for the proposed regulatory change. The reasons for the change are cited below:

“During the course of L&GNSW’s consideration of the Hard Solo liquor product, submissions were sought from several drug and alcohol research bodies. A common thread among them was the high popularity of soft drinks among young people and the particular vulnerability of minors to alcohol-related injuries and diseases. L&GNSW has formed the view that liquor products which leverage established or iconic soft drink brands inherently hold appeal to minors and believes this risk warrants consideration of regulatory action under section 100 of the Act. The speed with which Hard Solo gained popularity within the market and among young people highlights the risks associated with dealing with this type of product in a reactive manner and the need for more definitive guidance to industry around what is or is not acceptable.”

The Hard Solo Decision

The ABAC Adjudication Panel decided on 8 November 2023 that Hard Solo was in breach of Part 3 (b)(i) of the ABAC Code by having strong or evident appeal to minors, which is defined under Part 6 as:  

1. likely to appeal strongly to minors;
2. specifically targeted at minors;
3. having a particular attractiveness for a minor beyond the general attractiveness it has for an adult;
4. using imagery designs, motifs, animations or cartoon characters that are likely to appeal strongly to minors or that create confusion with confectionery or soft drinks; or
5. using brand identification, including logos, on clothing, toys or other merchandise for use primarily by minors.

Controversially, the finding was handed down despite Carlton & United Breweries receiving approval for Hard Solo’s packaging under the official ABAC Pre-Vetting Service. Although the service promises advice on whether the proposed marketing complies with the ABAC Code, approval does not grant immunity from public complaints nor the Adjudication Panel’s capacity to make findings in response to those complaints. ABAC received ten complaints from consumers directed at the similarities between Hard Solo and its non-alcoholic lemon squash counterpart, and the risk of children confusing the two. It was the first occasion the Adjudication Panel had to consider the compliance of a product that was the alcoholic version of a well established national soft drink brand. Indeed, it was instrumental to the final determination that Hard Solo capitalised on widespread familiarity with the Solo soft drink, with the panel conceding that Hard Solo without its soft drink parent would likely not be in breach of the Code.

Hard Solo has since undergone a rebrand to ‘Hard Rated’ to distance itself from its non-alcoholic soft drink version, complying with ABAC’s requirement that rebranding be completed by 9 February this year.

Looking Ahead: The need for caution

Deliberations on the proposed regulatory changes by L&GNSW are currently ongoing, with the consultation period with industry stakeholders having concluded on 6 March 2024. Regardless of its outcome, the regulatory proposal and Hard Solo determination signal a strong regulatory intent to prohibit marketing that may appeal to minors.

To ensure compliance with ABAC and L&GNSW standards, it is imperative that marketers of alcoholic drinks seek legal advice from practitioners with industry experience when developing innovative products.