Newcastle Distilling Co Social Media Marketing

ABAC Adjudication Panel Determination 40/25

Part 1 - Determination Overview

Complaint:

The complainant is concerned that social media posts promoting Newcastle Distilling Co. use the Instagram and TikTok logos, and are cartoonish and brightly coloured, hence appeal strongly to children.

Key findings:

The Panel dismissed the complaint. Findings:

• The post consists of an image and detailed text information about the offer to receive products for the production of videos.
• Social media is accessed across age groups and is not solely or even predominantly used by minors, and adults and minors would recognise the platform logos.
• Taken as a whole, the post would be of no more significant appeal to minors than it would be to adults.

Marketing Communications:

The complaint concerns a social media post on both Facebook and Instagram:

Part 2 - The Panel’s View

1. Newcastle Distilling Co (the Company) is a small batch spirits distillery based in Wickham, an inner suburb of Newcastle, NSW. In March 2025, social media content creators were invited to email the Company to potentially receive alcohol products in return for making ‘engaging videos’. This offer was made via social media posts to the Company’s Facebook and Instagram accounts, and these posts have attracted the complaint.
2. The complainant argues that the posts are objectionable because they are aimed at children, using the Instagram and TikTok logos and being cartoonish and brightly coloured. This concern enlivens Part 3 (b)(i) of the Code, which provides that an alcohol marketing communication (which includes social media posts) must not have a strong or evident appeal to minors. This standard might be breached if the marketing:

• specifically targets minors;
• has a particular attractiveness for a minor beyond the general attractiveness it has for an adult;
• uses imagery, designs, motifs, language, activities, interactive games, animations or cartoon characters that are likely to appeal strongly to minors; and
• creates confusion with confectionery, soft drinks, or other similar products, so the marketing communication is likely to appeal strongly to minors.

3. The Panel has often considered the Part 3 (b) standard. While each marketing communication must always be assessed individually, some characteristics within marketing material that may make it strongly appealing to minors include:

• The use of bright, playful, and contrasting colours.
• Aspirational themes that appeal to minors wishing to feel older or fit into an older group.
• The illusion of a smooth transition from non-alcoholic to alcoholic beverages.
• Creation of a relatable environment using images and surroundings commonly frequented by minors.
• Depiction of activities or products typically undertaken or used by minors.
• Language and methods of expression that are used more by minors than by adults.
• Inclusion of popular personalities of evident appeal to minors at the time of the marketing (personalities popular to the youth of previous generations will generally not have strong current appeal to minors).
• Style of humour relating to the stage of life of a minor (as opposed to humour more probably appealing to adults).
• Use of a music genre and artists featuring in youth culture.

4. Only some of these characteristics will likely be present in a specific marketing communication. The presence of one or more characteristics does not necessarily mean that the marketing item will have a strong or evident appeal to minors. The overall impact of the marketing communication, rather than an individual element, shapes how a reasonable person will understand the item.
5. In deciding whether a marketing communication complies with a Code standard, the Panel is to place itself in the position of a reasonable person and assess that person’s probable understanding of the marketing. A ‘reasonable person’ is a concept taken from the common law system and means that most community members’ life experiences, values, and attitudes are the benchmark.
6. The Company refutes that the post has a strong appeal to minors. Its main points are:

• The post does not promote a particular product; therefore, it cannot be deemed alcohol advertising.
• The post promotes an exchange of services for User-Generated Content (UGC) and does not provide “free booze” to customers; it’s merely a catchphrase.
• It does not appeal to minors just because it has bright colours.
• The Facebook and Instagram pages, where this was posted, have 18+ settings on the pages.

7. The ABAC applies to the promotion of alcohol branding in addition to the marketing of specific alcohol products. The post promotes the Company as an alcohol producer, and the Company’s name features on the branding of its products. It shows various images of alcoholic drinks. Accordingly, the post is a marketing communication for ABAC purposes, notwithstanding that it does not reference an individual Company product.
8. Further, age gating of the Company’s social media accounts is required under the ABAC Placement Standards, which aim to direct marketing towards adults and away from minors. Compliance with the placement standards does not relieve a marketer from also meeting the ABAC Content Standards, including that marketing material does not have a strong appeal to minors.
9. The complainant contends that combining the social media platform logos and the bright colours used in the image means the post will appeal to minors. The post is brightly coloured and eye-catching; however, on balance, the Panel does not believe it breaches the Part 3 (b)(i) standard. In reaching this conclusion, the Panel noted:

• The post consists of an image and detailed text information about the offer to receive products for the production of videos.
• Social media is accessed across age groups and is not solely or even predominantly used by minors, and adults and minors would recognise the platform logos.
• Taken as a whole, the post would be of no more significant appeal to minors than it would be to adults.

10. The complaint is dismissed.

Part 3 - Supporting Information

Panel Process

This complaint was received from Ad Standards (the common entry point for all marketing complaints by members of the Australian community). The Chief Adjudicator referred it to the ABAC Adjudication Panel for consideration against the ABAC Responsible Alcohol Marketing Code. The complaint process is explained here.

The Panel operates following the ABAC Rules & Procedures and has regard to the principles of procedural fairness.

The Panel comprised Chief Adjudicator Professor the Hon Michael Lavarch AO, Health Sector Panelist Richard Mattick and Panelist Debra Richards.

Applicable ABAC Responsible Marketing Code Standard

Code Part 3 (b) - An Alcohol Marketing Communication must NOT:

Company Response

The Company was provided with an opportunity to respond to the complaint, and its principal comments were:

The advertisement does not appeal to minors because it has bright colours.

• Our Facebook and Instagram pages, where this was posted, have 18+ settings on the pages.
• The advertisement promotes an exchange of services for User-Generated Content (UGC) and does not provide “free booze” to customers; it’s merely a catchphrase.
• The advertisement does not breach any responsible service of alcohol rules.
• The advertisement does not promote a particular product; therefore, it cannot be deemed alcohol advertising.
• The complaint is likely from a former disgruntled shareholder of our company. Over the last two weeks, we have had six former shareholders actively abusing us, complaining constantly, and even making threats to us, and I suspect this is likely one of those people.

Marketing Best Practice

The Company was asked how it demonstrates a commitment to best practices for alcohol marketing, but it chose not to respond.

It is noted that the Company:

• Is not a signatory to the ABAC Scheme.
• Has not undertaken the ABAC online training course.
• Did not utilise the ABAC pre-vetting service to develop social media marketing.