Complaint 10/707 - DB Export Beer Advertisements

DECISION

Meeting 26 January 2011

Complaint 10/707

Complainant: J Anderton & A. Macfehin
Advertisement: DB Breweries Limited

Complaint: The newspaper, television and cinema advertisements for DB Export Beer. The television and cinema advertisements were also displayed on the Advertiser’s website.

The newspaper advertisement

The newspaper advertisement for DB Export Beer was headed “HOW TO LOSE AN ELECTION” and was centered around Finance Minister Arnold Nordmeyer’s 1958 Black Budget that increased taxes on luxury items such as alcohol. The advertisement stated, in part (referring to Finance Minister Arnold Nordmeyer): “His infamous 1958 ‘BLACK BUDGET’ was a puritanical regime that taxed the world’s best beers so heavily, no ordinary bloke could afford to drink ‘em.” The advertisement also said, in part, when referring to Morton Coutts “His mission was gutsy bit simple: to dodge Nordmeyer’s tax by brewing the world’s best beer, right here.”

The television advertisement (which was also displayed on the Advertiser’s website)

The television advertisement (key: DBB03000209) for DB Export Beer (which was also displayed on the Advertiser’s website) was in black and white. The advertisement was about Finance Minister Sir Arnold Nordmeyer’s `infamous ‘Black Budget’ and the introduction by Morton Coutts of DB Export Beer in response to the tax. The voice-over in the advertisement said: “It was the year of the Black Budget…Suddenly imported beer was priced way out of reach…The Government took on the working men…And Morton Coutts took on the Government…Not only did Morton avoid the tax by brewing his export beer here in New Zealand. He also took on the best beers in the world…And won”. The advertisement finished with music playing and a screen-shot of four different bottles of DB Export Beer and the tag line “LET NOTHING BECOME BETWEEN A MAN AND A GREAT BEER.”
The cinema advertisement (which was also displayed on the Advertiser’s website)

The cinema advertisement for DB Export Beer (which was also displayed on the Advertiser’s website) was in black and white and longer than the television advertisement. The advertisement was about Finance Minister Sir Arnold Nordmeyer’s `infamous ‘Black Budget’ and the introduction by Morton Coutts of DB Export Beer in response to the tax. The voice-over in the advertisement said: “It was the fifties…I was a barber back then, which is how I came to meet Morton Coutts. He owned the Waitemata Brewery. There’s nothing that he didn’t know about beer….Every night the worker’s would stop at the pub across the road…And Morton would watch them…58 was the year of the Black Budget…The government has announced a punishing tax on beer… Suddenly imported beer was priced way out of the reach… “Nordmeyer added: as of today the tax on all imported beers will be doubled to nine pence…The government took on the working men and Morton took on the government” …. “Not only did Morton take on the government avoiding the tax by brewing export beer here in New Zealand. He also took on the best beers in the world…And won”. The advertisement concluded with a series of screen-shots which read “DB Export Beer went on to win Best Beer in the world in ’68.” and “Arnold Nordmeyer’s government lost the election” and “More gold medal winning beers followed with Export Gold, Export Dry and Export 32”. The last screen-shot was of a picture of a bottle of DB Export and a glass next to it with the tag line “LET NOTHING BECOME BETWEEN A MAN AND A GREAT BEER.”

Complainant, J. Anderton, said:

I wish to make a complaint concerning a series of advertisements that have appeared across media over the last few weeks. These stand in the name of DB Breweries and were prepared, we understand, by the Colenso agency. They take a number of forms.

I enclose a copy of one drawn from a newspaper (from a Dominion Post Saturday supplementary magazine of 20 November), they have been shown regularly on television e.g. at approximately 11.56 pm on Television 3 on 11 December, and have been widely shown in cinemas. They can also be seen on the internet at dbexportbeer.co.nz

They purport to tell the story of the Budget presented by the Nash/Nordmeyer government in 1958 which increased excise duties on beer and tobacco, and the response by brewing interests which allegedly outwitted this initiative. Although this is not made fully explicit the implication is that those who interfere with access to alcohol can expect to reap the political consequences. The intention of this advertising is clear enough in the context of a recent report by the Law Commission recommending further limitations on the sale and advertising of alcohol and the expected political response to those recommendations.

That alcohol manufacturing interests should have a perspective on that is to be expected and they are free to express that. However, in doing so they are not free agents and are constrained by the Advertising Code of Ethics. Specifically, Basic Principle 3 of that Code states: "No advertisement should be misleading or deceptive or likely to mislead or deceive the consumer." The Code goes on under its Rules to make clear what this means:

"Truthful presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity, or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge". The provision makes it clear that this does not apply to hyperbole.

The advertisement, in our view, fails these requirements on a number of counts:

The advertisement enclosed states: "[Nordmeyer's] 1958 'Black Budget' was a puritanical regime that taxed the world's best beers so heavily no ordinary bloke could afford to drink them." The implication is that imported beer, as a preferred beverage, was no longer within the reach of the pockets of working people as a result of the 1958 Budget. In fact in 1958 the amount of beer imported into New Zealand was miniscule. Working men did not drink imported beers either in pubs or at home. Imported beer did, however, up to that point, enjoy a tax advantage over the local product. Nordmeyer, while increasing the excise overall, also equalised the excise so that local and imported beers would be equally priced. One would have thought the New Zealand brewers of the day would have applauded this step which ended an advantage enjoyed by their overseas competitors.

The advertisement goes on to credit the then owner of the brewery, Morton Coutts, with developing a new brewing process "to dodge Nordmeyer's tax by brewing the world's best beer, right here." There is no doubt that Coutts developed what is known as the continuous fermentation process to brew beer, but the implication of the advertisement is that he did so in response to the 1958 Budget. This is simply not in accord with the facts. He developed this process not only in isolation from and over a period before the Budget but had in fact been using it commercially to brew beer at least a year prior to that Budget, the provisions of which would have been entirely unknown to him when he began doing so.

Some of the advertisements feature actuality footage of angry .demonstrations. The implication is (and made quite explicit in some versions of the advertisement) that these are working men rioting over the price of a jug of beer following the 1958 Budget. This is demonstrably false. We have been able to confirm with the copyright holder that this is actually footage drawn from the 1951 waterfront dispute and lockout. There were no riots or demonstrations of any sort arising from the 1958 Budget and to say or imply that there were is highly misleading and factually incorrect.

We consider the presentation of the material in these advertisements is grossly unethical and as such offends one of the basic principles of the Advertising Code of Ethics. We would be glad to have you consider these advertisements accordingly in light of the requirements of the Code.

A Duplicate Complainant, A. Macfehin, shared similar views with regard to the use of the historical footage in the advertisement.

The Chairman ruled that the following provisions were relevant:

Code of Ethics

Basic Principle 3 - No advertisement should be misleading or deceptive or likely to mislead or deceive the consumer.

Rule 2: Truthful Presentation - Advertisements should not contain any statement or visual presentation or create an overall impression which directly or by implication, omission, ambiguity or exaggerated claim is misleading or deceptive, is likely to deceive or mislead the consumer, makes false and misleading representation, abuses the trust of the consumer or exploits his/her lack of experience or knowledge. (Obvious hyperbole, identifiable as such, is not considered to be misleading).

Code for Advertising Liquor

Principle 2 - Liquor advertisements shall observe a high standard of social responsibility.

The Advertiser, DB Breweries Limited, said:
I refer to your letters dated 21 and 22 December 2010 concerning the above complaints made by C. Turner, D. Woodfield, J. Anderton (and A. Macfehin) and D. Cavaney.
I note that the advertising agency involved with this campaign was Colenso BBDO (Colenso). This response incorporates Colenso's input in relation to the complaints.
For the sake of ease, we have responded to each of these complaints in one letter as specified below. As a general matter applicable to all of the complaints, I note that all of the advertisements that are subject to complaints are variations on the same advertising campaign that has previously been considered by the Chairman and the Complaints Board (see decisions relating to complaints 10/630, 10/646, 10/647, 10/727, 10/764 and 10/766) all of which have been either not upheld or rejected by the Chairman for there being no apparent breach.
In the case of complaints 10/630, 10/646 and 10/647 the Board unanimously agreed that the advertisements in question observed the high standard of social responsibility required by Principle 2 of the Code for Advertising Liquor (Liquor Code). We submit that the standard of social responsibility required by the Liquor Code is arguably at least as high as that required by the Code of Ethics - Basic Principle 4. Because of this, and the Board's past rulings on the same or similar advertisements, we submit that none of the advertisements in the same class can be in breach of Code of Ethics - Basic Principle 4 or Principle 2 of the Liquor Code as they previously have been cleared on this point by the Board.

Complaints 10/695 and 10/696 (in relation to Code Of Ethics- Basic Principle 3 only)
The complainant considers that the DB Export Beer newspaper advertisements (together, Advertisement) are in breach of the Code of Ethics - Basic Principle 3 (in both complaint 10/695 and 10/696), Code of Ethics Rule 5, and Principle 2 and/or Guideline 2(b) of the Liquor Code.

DB emphatically denies that the Advertisement is in breach of the provisions of the Codes cited, or at all (and refers the Board to the past decisions referred to above relating to the same advertising campaign).
Code of Ethics - Basic Principle 3 requires that no advertisement be misleading or deceptive or likely to mislead or deceive the consumer.
The Advertisement tells the story of how the founder and former master brewer of DB Breweries, Morton Coutts, created an international quality beer right here in New Zealand to beat the Labour government's 1958 "Black Budget" tax on imported beers. The story speaks of Morton's vision to ensure international quality beer was affordable again to all New Zealanders at the price of local beer. The point is that DB Export allowed international quality beer to be sold at local beer prices, whereas international quality beer that was imported was taxed at a higher rate and hence was more expensive. The Advertisement, and indeed the name of the beer (DB Export), refers directly to this historical achievement. Consumers are not at risk of being misled as the Advertisement is clearly an advertisement for a product (DB Export beer) and clearly explains how that product originally came about and why it was named "Export". The original Export beer went on to win "Best Beer in the World" at the 1968 International Brewing Awards, so it was clearly international quality, and the story of how the beer came about and how it got its name is 100% accurate.
Code of Ethics Rule 5 requires that advertisements should not contain anything which in the light of generally prevailing community standards is likely to cause serious or widespread offence taking into account the context, medium, audience and product.
As noted above, variations on this Advertisement have already been held by the Board to observe a high standard of social responsibility. Of all the different variations of this Advertisement that have been displayed nationwide this is the only complaint (other than complaint 10/766 which was dismissed by the Chairman for there being no apparent breach) on the grounds of causing offence. As required by the Code of Ethics, taking into account the context, medium, target, audience and product, as well as the dearth of complaints alleging offence, the Advertisement cannot be said to have caused serious or widespread offence. Indeed the complainant himself does not even appear to be offended (noting that he has no religious faith) but rather is complaining on behalf of other people who he believes may be offended. In the absence of even one offended person, the Advertisement cannot be said to have caused serious or widespread offence.
In addition, in the decisions to complaints 10/646 and 10/647 the Board "noted the medium was a newspaper and commented that the publication was predominantly targeted at an adult audience. It further noted that the medium of the advertisement gave readers the opportunity to take their time to read the advertisement and understand the context in which the claim (subject to the complaint) was being made".
DB submits that the same analysis is applicable to the Advertisement and this complaint should equally not be upheld.

Guideline 2(b) of the Liquor Code requires that liquor advertisements shall not depict or imply unduly masculine themes. The complainant's concern relates, in particular, to the lines of the Advertisement "a nation of thirsty blokes" and "Let nothing come between a man and a great beer".

As noted above, previous decisions of the Board on the same or similar advertisements have either been not upheld or dismissed by the Chairman on the same issue. The decision in relation to complaint 10/727 focused solely on the purported breach of the same provisions by the line "let nothing come between a man and a great beer" and was dismissed as having no grounds to proceed by the Chairman. Equally, in the decisions relating to complaints 10/630, 10/646 and 10/647 the Board unanimously agreed that similar advertisements did not imply unduly masculine themes and were of a sufficiently high standard of social responsibility for the reasons set out in those decisions. Whilst those advertisements did not expressly use the line "a nation of thirsty blokes" the advertisement that was the subject of complaint 10/647 did contain the equivalent line "a nation of thirst quenched men".
Furthermore, in the decision relating to complaint 10/630 the Board noted that: "..the interpretation of [the phrase "unduly masculine themes"] was coloured by the words around it such as “offensiveness", "aggression", and "irresponsible behaviour". The Complaints Board noted that none of these themes appeared in the advertisement. It further acknowledged that beer had a predominate appeal to men and there was a level of acceptance that advertisements about beer would be more likely to appeal to men."
For the same reasons, DB emphatically denies that the Advertisement is in breach of the provisions of the Code cited, or at all. As noted in previous responses to similar complaints, DB obtained LAPS approval for these advertisements and many of the grounds for the complaints have been previously considered and dismissed by the Board or the Chairman.

Complaint 10/697
The complainant considers that the DB Export Beer newspaper advertisements (together, Advertisement) are in breach of the Code of Ethics - Basic Principle 3, Code of Ethics - Basic Principle 4, Code of Ethics Rule 2, Code of Ethics Rule 6, and Principle 2 and/or Guideline 2(b) of the Liquor Code.
DB emphatically denies that the Advertisement is in breach of the provisions of the Codes cited, or at all (and refers the Board to the past decisions referred to above relating to the same advertisement campaign).
Code of Ethics - Basic Principle 3 requires that no advertisement be misleading or deceptive or likely to mislead or deceive the consumer.
The complainant suggests that it is misleading to describe Nordmeyer as "a killjoy" and Coutts as "some sort of hero". Whilst it was in relation to a different provision of the Code of Ethics, this complaint is very similar to that considered by the Chairman in 10/766 in relation to the very same advertisement. In that case, Rule 5 regarding offensiveness was at issue, in relation to "several unflattering references to Arnold Nordmeyer", and the Chairman determined that there was no apparent breach of the Code of Ethics.
DB submits that the same applies to this Advertisement since, in the context and medium (both of which are discussed above in relation to complaint 10/695), it is clear that the Advertisement is providing an account from the Brewery's subjective perspective on historical facts. It is not purporting to have the exclusive say on history. Given that Nordmeyer's Labour party lost the then upcoming Election (and it is not disputed that the 1958 Budget was unpopular and contributed to this) we do not consider it misleading to present this opinion in the context of the Advertisement and in a medium which allows the reader to read the whole Advertisement in their own time and form their own view. Equally it is not misleading to state the Brewery's view that Coutts was regarded as a hero by many as this is the Brewery's opinion, supported by extensive research (see attached letter from Colenso).

Code of Ethics - Basic Principle 4 requires ail advertisements to be prepared with a due sense of social responsibility to consumers and to society.
This exact Advertisement was considered in the decision in relation to complaint 10/647 on the subject of standard of social responsibility as discussed in the introduction to this letter. In that decision the standard in question was the high standard set by the Liquor Code, whereas in this case it is the requisite standard set out in the Code of Ethics. In the decision on complaint 10/647 the Board unanimously held that the same advertisement observed a high standard of social responsibility and we submit that the same applies in respect of this complaint.
Code of Ethics - Rule 2 requires all advertisements to not create an overall impression which is misleading or abuses the trust of the consumer.
For the same reasons given in relation to Basic Principle 3 above, DB submits that the Advertisement is not misleading in any particular respect or in overall impression and nor does it abuse the trust of the consumer. In the context and medium, it is dear that it presents a subjective view which is both plausible and accurate. We maintain that, at the time, many did see Nordmeyer in the light described by the Advertisement (see the summary of research undertaken by Colenso in the letter attached).
Code of Ethics - Rule 6 requires that advertisements should not exploit the superstitious nor without justifiable reason play on fear.
It is not clear how the Advertisement is playing on fear other than the complainant's suggestion that the Advertisement is somehow aimed at scaring the Government into producing liquor- industry-friendly legislation out of fear of losing an election. This is far too remote to be plausible and nor can the Government be accurately described as 'superstitious' or prone to acting out of fear. As noted above, the same advertisement has already been ruled as observing a high standard of social responsibility.
Guideline 2(b) of the Liquor Code requires that liquor advertisements shall not depict or imply unduly masculine themes. The complainant's concern relates, in particular, to the lines of the Advertisement "Let nothing come between a man and a great beer".
As described above in relation to the same complaint in complaint 10/695, this same claim and advertisement has already been considered and dismissed by both the Chairman and the Board.
In addition to the television and newspaper advertisements, the line has subsequently been used on pack and in point of sale, digital and radio media across the country, and has received no other complaints that we are aware of (other than those discussed in this letter).

Complaint 10/707
The complainant considers (or you have identified as relevant) that the DB Export Beer advertisements (together, Advertisement) are in breach of the Code of Ethics - Basic Principle 3, Code of Ethics Rule 2, and Principle 2 of the Liquor Code.
DB emphatically denies that the Advertisement is in breach of the provisions of the Codes cited, or at all (and refers the Board to the past decisions referred to above relating to the same advertisement campaign).
Code of Ethics - Basic Principle 3 requires that no advertisement be misleading or deceptive or likely to mislead or deceive the consumer.

The complainant alleges that the Advertisement is misleading as to the effect of the tax on imported beers introduced by the 1958 Budget as well as Morton Coutts' reaction to this. This is essentially the same complaint under Basic Principle 3 as those in complaints 10/695 and 10/696 and I refer you to the response given above in relation to those complaints. In addition, the following comments are made by Colenso in relation to the specific allegations of the complainant:
"The DB Export advertising campaign was created to bring to light Morton Coutts' personal and subjective motivations for creating DB Export. His private feelings about the Black Budget and resulting tax regime were that it was punitive against the common New Zealander in that it raised the cost of the world's best beers (which at the time were all imported), and that this would have made those beers less affordable.
His response was to create DB Export. A beer better than any international beer, and able to be sold cheaper than any international beer. It was a personal and subjective reaction to a problem that he saw in the marketplace. Morton did not set out to solve all the problems of the black budget. There will certainly have been New Zealanders more affected by the tax on local beers. But this was not the genesis of DB Export.
What motivated Morton particularly was the rise in price of imported beer.
This particular aspect of the Black Budget stimulated Morton to think ambitiously, as is the case with so many great New Zealanders. To dare to dream of a New Zealand beer beating the world's best.
We have told the story faithfully to the recorded history, to the recollections of many New Zealanders alive at the time, and to motivations and intentions of Morton Coutts, a great New Zealander who took inspiration from something that most people viewed negatively, and turned the situation into something hugely positive - a landmark piece of world beating New Zealand innovation."
Specific Charges

"There was very little imported beer and it wasn't drunk by workers. Too expensive both before and after the 1958budget."
We have not claimed that there was a lot of imported beer, nor that it was drunk by all workers. The facts we have communicated are that (1) there was beer imported into New Zealand, (2) that beer was of a higher quality as evidenced by its performance in international brewing awards, (3) that the price of that beer rose following the Black Budget and (4) that this made the beer less affordable to New Zealanders. Morton's ideological point of view was that it was unfair to workers to raise the price of imported beer further from their reach. We know of no documented evidence that NZ workers never drank imported beer.

"Morton Coutts used the innovative "Continuous Fermentation Process" since 1956 - not as a result of the '58 budget."
Two of the print ads refer to the fact that Continuous Fermentation was invented prior to the Black Budget. We have never claimed that Continuous Fermentation was invented in 1958, nor as a result of the Black Budget. The message is that Morton used his pre-existing Continuous Fermentation process to create DB Export.

"The Black Budget increased taxes on all alcohol"
We have never said this was not the case. Morton's idea for DB Export, though, came from the increase in price of imported beer,"
Code of Ethics — Rule 2 requires advertisements to not create an overall impression which is misleading or abuses the trust of the consumer.
The complainant (as well as complainant A. Macfehin) alleges that the use of the 1951 waterfront dispute footage in the television versions of the Advertisement makes a false representation or is misleading and deceptive, abusing the trust of the consumer or exploiting their lack of knowledge.
DB reject this allegation. The footage was used to display visually the feelings of displeasure and unrest felt in response to the 1958 Budget. In the context of an advertisement portraying a past event using television as a.medium in the limited time allowed by such advertisement slots, the footage is intended only to be evocative of these feelings of protest to demonstrate the motivation behind making and naming DB Export beer in the time permitted. As required by Rule 2 of the Code of Ethics, the Advertisement must not create an overall impression which misleads, deceives or abuses the trust of the consumer. There is historical evidence to back up the claims that the 1958 Budget was unpopular (not the least that Labour lost the then upcoming Election off the back of it) and that is the overall impression created by the Advertisement - that DB Export beer was designed and created as a response to the public feeling following the 1958 Budget and went on to become one of the true success stories of New Zealand's brewing history.
Colenso additionally state:
"Our research showed that there was a dramatic negative public reaction around the country, with recollections of people reacting ‘violently'. The riot scene in the campaign was used to depict the level of civil unrest recorded by the historical documents and recollections of those who were there at the time."
We collectively reject the suggestion that the Advertisement is misleading, deceptive or not a truthful presentation.
Principle 2 of the Liquor Code requires that liquor advertisements shall observe a high standard of social responsibility.

Whilst the complainant does not specifically refer to the Liquor Code, it is referred to in your letter of 21 December 2010, and we respond accordingly for the sake of completeness. As referred to in the general section at the start of this letter, and in the responses to other complaints above concerning Principle 2 and Guideline 2(b) of the Liquor Code, the Board has previously unanimously agreed that the Advertisement observes the high standard of social responsibility required of it by the Liquor Code. The Advertisements cited by the complainants here are in some places the same as the advertisements previously considered by the Board or the Chairman and in all other places feature minor variations to the same advertising campaign. For the same reasons set out above, and in previous responses to complaints concerning these provisions, we reject the allegation that the Advertisement does not observe the requisite high standard of social responsibility.

Finally, whilst not explicitly cited in relation to a provision of the Advertising Codes, the complainant also alleges that the Advertisement is intended to influence the Law Commission and/or the Government as they review Alcohol laws. As noted above in response to complaint 10/697 concerning Code of Ethics Rule 6, this is absolutely not the case. Colenso started work on this campaign prior to June 2009 which was preceded by work internally at DB. To allege that, at that time, all of this work was created to influence then unknown law reforms by an independent body is farfetched to say the least The intention of the Advertisement is to tell the remarkable true story of the origins of DB Export beer and its journey from an idea as a response to the unpopular 1958 Budget through to winning the "Best Beer in the World" award at the 1968 International Brewing Awards in order to give more credence and popularity to the brands Export Dry, Export Gold and Export 33. Many New Zealanders would have had little idea of the origins of these brands and explaining the link between them, and to the original DB Export, was at the heart of the Advertisement.

Complaint 10/726
Code of Ethics - Basic Principle 3 requires that no advertisement be misleading or deceptive or likely to mislead or deceive the consumer.
The complainant suggests that it is misleading / deceptive to describe Coutts as "a public benefactor and a hero of working class men".
As noted above in relation to a similar complaint in 10/697 concerning Basic Principle 3 of the Code of Ethics, we do not consider this misleading or deceptive for the reasons set out in the response to that complaint. Additionally, as noted by Colenso (see response above to complaint 10/707 concerning Basic Principle 3):
"The DB Export advertising campaign was created to bring to light Morton Coutts' personal and subjective motivations for creating DB Export. His private feelings about the Black Budget and resulting tax regime were that it was punitive against the common New Zealander in that it raised the cost of the world's best beers (which at the time were all imported), and that this would have made those beers less affordable.
His response was to create DB Export. A beer better than any international beer, and able to be sold cheaper than any International beer. It was a personal and subjective reaction to a problem that he saw in the marketplace. Morton did not set out to solve all the problems of the black budget. There will certainly have been New Zealanders more affected by the tax on local beers. But this was not the genesis of DB Export."
In the view of the advertiser, and of many New Zealanders at the time, what Morton Coutts did in creating DB Export was a good thing, and thus we reject any suggestion that portraying this as such is misleading and/or deceptive.
For this reason, and those previously discussed, DB denies that the Advertisement is in breach of the provisions of the Code cited or at all.

Complaint 10/746
The complainant considers that the DB Export Beer television advertisement (Advertisement) is in breach of the Code of Ethics - Basic Principle 3 and Principle 2 and/or Guideline 2(b) of the Liquor Code.
DB emphatically denies that the Advertisement is in breach of the provisions of the Codes cited, or at all (and refers the Board to the past decisions referred to above relating to the same advertisement campaign).

Code of Ethics - Basic Principle 3 requires that no advertisement be misleading or deceptive or likely to mislead or deceive the consumer.
For the same reasons set out in the response above in relation to complaint 10/695, in relation to the same provision of the Code of Ethics and made by the same complainant, we reject that the Advertisement is misleading or deceptive or otherwise breaches any aspect of the Code of Ethics. Additional reasons for this are given in the response to complaint 10/707 above concerning the same provision of the Code of Ethics.
Guideline 2(b) of the Liquor Code requires that liquor advertisements shall not depict or imply unduly masculine themes. The complainant's concern is on the advertisement being full of "blokey" scenes.
We refer you to the introduction to this letter as well as the responses above concerning the same provision of the Liquor Code in relation to complaints 10/695, 10/697 and 10/707 as well as previous decisions 10/630, 10/646 and 10/647. For the same reasons we reject that the Advertisement depicts or implies unduly masculine themes or fails to observe a high standard of social responsibility.

Complaint 10/765
The complainant considers that the DB Export Beer newspaper advertisement (Advertisement) is in breach of the Code of Ethics - Basic Principle 4, Code of Ethics Rule 2, and Principle 2 and/or Guideline 2(b) of the Liquor Code.
DB emphatically denies that the Advertisement is in breach of the provisions of the Codes cited, or at all (and refers the Board to the past decisions referred to above relating to the same advertisement campaign).
Code of Ethics - Basic Principle 4 requires all advertisements to be prepared with a due sense of social responsibility to consumers and to society.
As noted above in the introduction to this letter and in the response to complaint 10/697, this exact Advertisement was considered in the decision in relation to complaint 10/647 on the subject of standard of social responsibility. In that decision the standard required was the high standard set by the Liquor Code, whereas in this case it is the standard set out in the Code of Ethics. The decision for complaint 10/647 unanimously held that the same advertisement observed a high standard of social responsibility and we submit that the same applies in this case.
Whilst the complaint does not specifically cite Basic Principle 4, we respond for the sake of completeness and submit that the same analysis as in 10/647 applies to this complaint and for the same reasons the complaint should not be upheld. If the reference was meant to be to Basic Principle 3 (we note the complainant's reference to "deceptiveness" and the similarities with complaints 10/695, 10/696, 10/707 and 10/746 in relation to Basic Principle 3) we refer you to the responses to those complaints and asset that the same-applies in this case.
Code of Ethics - Rule 2 requires all advertisements to not create an overall impression which is misleading or abuses the trust of the consumer.

For the same reasons given in relation to Rule 2 in the responses to complaints 10/697 and 10/707 above, as well as in relation to Basic Principle 3 above (where the same complaint concerning the impact of the excise tax is raised), we submit that the Advertisement is not misleading at all let alone in overall in impression and nor does it abuse the trust of the consumer. The point is that DB Export allowed international quality beer to be sold at local beer prices, whereas international quality beer that was imported was taxed at a higher rate and hence was more expensive.

Guideline 2(b) of the Liquor Code requires that liquor advertisements shall not depict or imply unduly masculine themes. The complainant's concern relates, in particular, to the lines of the Advertisement "bulk of the male population" and "Let nothing come between a man and a great beer".

As discussed at length above in relation to other complaints focused on the same provision, this Advertisement has previously been unanimously ruled by the Board as not depicting unduly masculine themes and also for observing the high standard of social responsibility required by the Liquor Code. Decision 10/647 considered the same Advertisement on the same issue.

In summary, DB submits that the DB Export Beer Advertisements are not in breach of the various provisions of the Code of Ethics and Liquor Code, and otherwise comply with the spirit and intention of these Codes. Furthermore, the Advertisements were robustly researched and received LAPS approval. A copy of Colenso's full response to a media enquiry (including their list of references) is also included.
Accordingly, we respectfully request that each of the complaints be considered: Not upheld.

The Agency, Colenso BBDO, said:

The message of the DB Export campaign is that (1) DB Export was 'New Zealand's first great beer', as evidenced by it becoming the first New Zealand beer to win best beer in any class at an international brewing awards, and (2) that Morton Coutts created DB Export in response to the 1958 Black Budget, with a vision of making the world's best beer available to New Zealanders without the tax imposed on imported beers.

The particulars of the story surrounding the creation of DB Export were extensively researched by Colenso BBDO and DB, as shown in the accompanying appendix of research sources. We spoke to historians, we spoke to people who were there at the time, we researched Morton, we researched Arnold Nordmeyer, we searched the archives, we spoke to the brewers (who knew Morton and had pretty much every detail), we spoke to people who remembered the beer, and we spoke to "Black Budget" specialists. It was a fascinating journey.

The DB Export advertising campaign was created to bring to light Morton Coutts' personal and subjective motivations for creating DB Export. His private feelings about the Black Budget and resulting tax regime were that it was punitive against the common New Zealander in that it raised the cost of the world's best beers (which at the time were all imported), and that this would have made those beers less affordable.

His response was to create DB Export. A beer better than any international beer, and able to be sold cheaper than any international beer. It was a personal and subjective reaction to a problem that he saw in the marketplace. Morton did not set out to solve all the problems of the black budget. There will certainly have been New Zealanders more affected by the tax on local beers. But this was not the genesis of DB Export.

What motivated Morton particularly was the rise in price of imported beer.

This particular aspect of the Black Budget stimulated Morton to think ambitiously, as is the case with so many great New Zealanders. To dare to dream of a New Zealand beer beating the worlds' best.

We have told the story faithfully to the recorded history, to the recollections of many New Zealanders alive at the time, and to motivations and intentions of Morton Coutts, a great New Zealander who took inspiration from something that most people viewed negatively, and turned the situation into something hugely positive - a landmark piece of world beating New Zealand innovation.

Specific Charges:

"There was no rioting after the 1958 budget"

Our research showed that there was a dramatic negative public reaction around the country, with recollections of people reacting 'violently'. The riot scene in the campaign was used to depict the level of civil unrest recorded by the historical documents and recollections of those who were there at the time.

"There was very little imported beer and it wasn't drunk by workers. Too expensive both before and after the 1958 budget"

We have not claimed that there was a lot of imported beer, nor that it was drunk by all workers. The facts we have communicated are that (1) there was beer imported into New Zealand, (2) that beer was of a higher quality as evidenced by it's performance in international brewing awards, (3) that the price of that beer rose following the Black Budget and (4) that this made the beer less affordable to New Zealanders. Morton's ideological point of view was that it was unfair to workers to raise the price of imported beer further from their reach. We know of no documented evidence that NZ workers never drank imported beer.

"Morton Coutts used the innovative "Continuous Fermentation Process" since 1956 - not as a result of the '58 budget."

Two of our print ads refer to the fact that Continuous Fermentation was invented prior to the Black Budget. We have never claimed that Continuous Fermentation was invented in 1958, nor as a result of the Black Budget. The message is that Morton used his pre-existing Continuous Fermentation process to create DB Export.

"Coutts did not "own" the brewery in 1958"

The Coutts Family did have ownership of the Waitemata Brewery until the death of William Joseph Coutts at which point Morton Coutts became a Director of DB Breweries and continued as Head Brewer at DB Breweries Waitemata Brewery right through the period in question.

"The Black Budget increased taxes all alcohol"

We have never said this was not the case. Morton's idea for DB Export, though, came from the increase in price of imported beer.

"There was a uniform price for the local beers throughout the country and the tax on that was what pissed working men off and helped Labour lose the 1960 election."

There were many aspects of the Black Budget that upset New Zealanders and helped Labour lose the election. The DB Export Story is about a single, particular aspect - the resulting rise in price of imported beer. This was the aspect that led to the creation of DB Export.

RESEARCH APPENDIX

Over the course of the 16mths leading up to the campaign launch in October 2010, we went through a detailed research process before telling the story of DB Export, we collected the following:
extensive Internet desk research
interview with CEO of DB Breweries, Brian Blake
multiple interviews with Head Brewmaster DB Breweries, Doug Banks
interview with NZ economic and social scholar and teacher, Brian Easton
interviews with New Zealanders affected by the Black Budget including Janette Mills, George Duffy, Elaine Duffy, Roley Houghton, Graham Hobson, Roger Curtis
historical footage from NZ Film Archive
historical recording from the Sounds Archive
research materials from the Alexander Turnbill - National Library of New Zealand research materials from the DB Breweries archives

We have referred to some of the specific materials below to provide historical substance to the key points of the DB Export Story.

1. The 1958 Black Budget increased the price of alcohol on beer, through an increase in excise tax. Imported beers was hit further with an increase in customs duty.
NZ Herald article, 27 June 1958 (printed reference supplied)
Wikipedia, Black Budget (New Zealand),
(http://en.wikipedia.org/wiki/Black Budget %28New Zealand%29)
Arnold Nordmeyer biography, Dictionary of New Zealand Biography (http://www.teara.govt.nz/en/biographies/5n12/1)

2. Arnold Meyer's 1958 Black Budget was unpopular with New Zealanders. There was a dramatic negative public reaction all around the country to the budget and in particular the increases in tax on beer, cigarettes and petrol. The public showed anger and hositility.
Brian Easton interview (http://dbexportbeer.co.nz/The-Untold-True-Story/video- gallery.aspx#/5)
Roger Curtis interview (http://dbexportbeer.co.nz/The-Untold-True-Story/video- gallery.a5PX#/6)
Janette Mills, George Duffy, Elaine Duffy, Roley Houghton, Graham Hobson interview
(http://dbexportbeer.co.nz/The-Untold-True-Story/video-gallery.aspx#/8)
Arnold Nordmeyer biography, Dictionary of New Zealand Biography
(http://www.teara.govt.nz/en/biographies/5n12/1)
Walter Nash biography Dictionary of New Zealand Biography
(http://www.teara.govt.nz/en/biographies/4n2/1)
TeAra Encyclopedia of New Zealand, Post-war taxation - 1950 to 1959
(http://www.teara.govt.nz/en/taxes/5)

3. Arnold Nordmeyer did not drink alcohol and was seen by many as a "puritanical wowser".
Brian Easton (NZ Historian) interview (http://dbexportbeer.co.nz/The-Untold-True-Story/video-qallerv.aspx#/5)
Black Budget (New Zealand), Wikipedia,
(http://en.wikipedia.org/wiki/Black Budget %28New Zealand%29)
Arnold Nordmeyer biography, Dictionary of New Zealand Biography (http://www.teara.govt. nz/en/biographies/5n12/1)

4. Morton Coutts invented Continuous Fermentation in the 1950's. It was granted a patent in 1956 prior to the Black Budget. Colenso BBDO have not claimed that Continuous Fermentation was created to beat the Black Budget. They have claimed that Morton Coutts used it to create DB Export Beer, which beat the customs duty tax imposed on imported beers.
DB Export print advertisement "The beer that took on a Government." Sunday Star Times, 10 Oct 2010. (Printed reference supplied)
DB Export print advertisement. "If necessity is the mother of invention, meet the father." Herald on Sunday, 17 Oct 2010. (Printed reference supplied)
DB Export website, www.dbexportbeer.co.nz
Peter MacKay, Coolangatta: A Homeage, Chapter 7 pg 144.

Additional references:
http://en.wikipedia.org/w/index.php?title=Special%3ASearch&search=DB+Export
http://www.nzetc.org/tm/scholarly/tei-WH2Econ-c20-12.html
http://www.eastonbh.ac.nz/?p=452
http://www.eastonbh.ac.nz/?p=958
www.victoria.ac.nz/sacl/6ahic/Publications/6AHIC-36_FINAL_paper.pdf
http://www.teara.govt.nz/en/balance-of-payments/1/1
http://www.national.org.nz/About/history.aspx
http://www.teara.govt.nz/en/biographies/4n2/1
http://www.nzhistory.net.nz/timeline/26/11

The Media, The Dominion Post, said:

I have read the series of advertisements referred to above and believe the Agency's will be able to best assist in confirming how they researched and verified the content detail; and their approval process.

I will wait to hear from you on the findings and any guidelines for us to use for future campaigns of this genre.

We are not aware of any future bookings for this campaign in the Dominion Post.

Commercial Approvals Bureau (CAB) said on behalf of the media:

We have been asked to respond to this complaint under the Code of Ethics - Basic Principle 3 - misleading and deceptive.

The complainant felt the portrayal of Morton Coutts as a public benefactor and hero of working class men was a distortion of the truth.

This alcohol advertisement (post 8.30pm) - "The Untold True Story" - has been made as part of a marketing campaign which celebrates the 50th anniversary of DB Export Beer. The return of the original quarter-sized DB Export ABC bottles depicting the 1960's branding and the history of the beer displayed on packaging completes this campaign.

It should be noted complaint 10/630 against this commercial was not upheld. The Board noted in that decision that the historical account in this advertisement was all about celebrating an era when drinking in a public bar (which closed at 6pm) was very much a man's domain.

At that time Morton Coutts was regarded as a 'hero' to those men and as such CAB submits this complaint should not be upheld.

Deliberation

The Complaints Board reviewed the relevant correspondence and viewed copies of the television and cinema advertisements which were also on the Advertiser’s website, and the newspaper advertisement. It noted that the Complainant was of the view that the newspaper advertisement was misleading with reference to “His infamous 1958 ‘BLACK BUDGET’ was puritanical regime that taxed the world’s best beers so heavily, no ordinary bloke could afford to drink ‘em.” and the reference to “His mission was gutsy but simple: to dodge Nordmeyer’s tax by brewing the world’s best beer, right here.” The Complaints Board also noted the Complainant and Duplicate Complainant, A. Macfehin, shared similar views that the use of the footage in the television and cinema advertisements from the 1951 waterfront dispute and lockout was misleading.

The Chairman directed the Complaints Board to consider the complaint with reference to Rule 2 and Basic Principle 3 of the of the Code of Ethics. This required the Complaints Board to consider whether the advertisements contained anything that directly or by implication or omission was likely to deceive or mislead the consumer. The Complaints Board also had to determine whether the advertisements observed a high standard of social responsibility as required by Principle 2 of the Code for Advertising Liquor.
As a preliminary matter, the Complaints Board noted where the Advertiser stated in their response about the advertising campaign as a whole "The DB Export advertising campaign was created to bring to light Morton Coutts' personal and subjective motivations for creating DB Export. His private feelings about the Black Budget and resulting tax regime were that it was punitive against the common New Zealander in that it raised the cost of the world's best beers (which at the time were all imported), and that this would have made those beers less affordable.”

Turning to the newspaper advertisement, the Complaints Board firstly considered the reference in the advertisement “His infamous 1958 ‘BLACK BUDGET’ was a puritanical regime that taxed the world’s best beers so heavily, no ordinary bloke could afford to drink ‘em.” which the Complainant submitted was misleading as “The implication is that imported beer, as a preferred beverage, was no longer within the reach of the pockets of working people as a result of the 1958 Budget. In fact in 1958 the amount of beer imported into New Zealand was miniscule. Working men did not drink imported beers either in pubs or at home. Imported beer did, however, up to that point, enjoy a tax advantage over the local product. Nordmeyer, while increasing the excise overall, also equalised the excise so that local and imported beers would be equally priced. One would have thought the New Zealand brewers of the day would have applauded this step which ended an advantage enjoyed by their overseas competitors.”
The Complaints Board noted the Advertiser’s response to the point raised by the Complainant where it stated “We have not claimed that there was a lot of imported beer, nor that it was drunk by all workers. The facts we have communicated are that (1) there was beer imported into New Zealand, (2) that beer was of a higher quality as evidenced by its performance in international brewing awards, (3) that the price of that beer rose following the Black Budget and (4) that this made the beer less affordable to New Zealanders. Morton's ideological point of view was that it was unfair to workers to raise the price of imported beer further from their reach. We know of no documented evidence that NZ workers never drank imported beer.”

The Complaints Board accepted that the advertisement portrayed the Brewery’s subjective views of the historical facts of how DB Export Beer came about and was created to bring to light Morton Coutts' personal and subjective motivations for creating DB Export. It then noted the medium of the advertisement was a newspaper and commented that the publication was predominately targeted at an adult audience. It further noted that the medium gave readers the opportunity to take their time to read the advertisement, and understand the context in which the claim (subject to the complaint) was being made. The Complaints Board said the style of the story being told in the advertisement was colloquial and conversational. The Complaints Board, while accepting that there may be a degree of hyperbole and exaggeration used in the advertisement in relation to the portrayal of the historical events that took place, recognised that the advertisement was from the perspective of the Brewery and, therefore, not intended to be a text book account of history.

The majority of the Complaints Board considered that the claim subject to the complaint was not likely to mislead or deceive consumers, given the medium and colloquial/conservational style of the advertisement portrayed to the reader that the account of historical events bringing to light Morton Coutts’ personal and subjective motivations was from the perspective of the Brewery and, therefore, contained a degree of subjectivity and hyperbole. Accordingly, the majority of the Complaints Board said that the advertisement was not in breach of Rule 2 and Basic Principle 3 of the Code of Ethics.

However, the minority of the Complaints Board disagreed and said that even given the medium and style of the advertisement, and the fact that the story being told in the advertisement was from the perspective of the Brewery, the likely overall consumer take-out of the claim was misleading. Accordingly, the minority said that the advertisement was in breach of Basic Principle 3 and Rule 2 of the Code of Ethics.

The Complaints Board noted the Complainant’s concern that the advertisement credits Morton Coutts with developing a new brewing process as it stated “to dodge Nordmeyer’s tax by brewing the world’s best beer, right here.” The Complainant submitted that this was misleading as “There is no doubt that Coutts developed what is known as the continuous fermentation process to brew beer, but the implication of the advertisement is that he did so in response to the 1958 Budget. This is simply not in accord with the facts. He developed this process not only in isolation from and over a period before the Budget but had in fact been using it commercially to brew beer at least a year prior to that Budget, the provisions of which would have been entirely unknown to him when he began doing so.”
The Complaints Board turned to consider the Advertiser’s response to this issue where it stated “Two of the print ads refer to the fact that Continuous Fermentation was invented prior to the Black Budget. We have never claimed that Continuous Fermentation was invented in 1958, nor as a result of the Black Budget. The message is that Morton used his pre-existing Continuous Fermentation process to create DB Export.” The Complaints Board accepted the Advertiser’s response and reiterated (as stated above), that given the style and medium of the advertisement the claim was not likely to mislead or deceive consumers as the likely overall consumer take-out was that the story was being told was from perspective of the Brewery. The Complaints Board was of the view that the newspaper advertisement was not likely to deceive or mislead consumers and ruled that the advertisement was not in breach of Basic Principle 3 and Rule 2 of the Code of Ethics.

The Complaints Board then turned to consider the issue raised by the Complainants with regard to the footage of the riots used in the television and cinema advertisements (which were also on the Advertiser’s website). The Complaints Board noted where the Complainant said “Some of the advertisements feature actuality footage of angry demonstrations. The implication is (and made quite explicit in some versions of the advertisement) that these are working men rioting over the price of a jug of beer following the 1958 Budget. This is demonstrably false. We have been able to confirm with the copyright holder that this is actually footage drawn from the 1951 waterfront dispute and lockout. There were no riots or demonstrations of any sort arising from the 1958 Budget and to say or imply that there were is highly misleading and factually incorrect.”

The Complaints Board then turned to consider the response submitted by the Advertiser where it stated “The footage was used to display visually the feelings of displeasure and unrest felt in response to the 1958 Budget. In the context of an advertisement portraying a past event using television as a medium in the limited time allowed by such advertisement slots, the footage is intended only to be evocative of these feelings of protest to demonstrate the motivation behind making and naming DB Export beer in the time permitted. As required by Rule 2 of the Code of Ethics, the Advertisement must not create an overall impression which misleads, deceives or abuses the trust of the consumer. There is historical evidence to back up the claims that the 1958 Budget was unpopular (not the least that Labour lost the then upcoming Election off the back of it) and that is the overall impression created by the Advertisement - that DB Export beer was designed and created as a response to the public feeling following the 1958 Budget and went on to become one of the true success stories of New Zealand's brewing history.”

The majority considered the footage used in the advertisements, which as asserted by the Complainant was from the riots of the 1951 waterfront and lockout dispute, in the context of the whole advertisement. The majority said that the execution of the television and cinema advertisements was in a ‘documentary type’ style, achieved by the use of the contrasting black and white screen-shots, the music, and the accompanying authoritative narration. The Complaints Board considered that these factors, coupled with the use of the actual footage of the riots (from a different historical event) gave the impression that the advertisements were portraying a credible and realistic depiction of history. The majority accepted that advertisers were entitled to use a degree of hyperbole and ‘creative licence’ in their advertisements and that the advertisements subject to the complaint were trying to convey the story from the Brewery’s subjective point of view. However, the majority was of the view that the broadcast advertisements went too far and the likely consumer take-out was that the historical account portrayed in the advertisements was an accurate depiction of history and not from the perspective of the Brewery (which contained hyperbole and subjectivity), given the medium (only allowed limited time for the viewer to digest the advertisement) and the execution of the advertisements. The majority said that the medium being used was important factor and differentiated the story being portrayed to that in the print advertisements which were more colloquial and conversational in tone and allowed the reader time to digest the story being told.

The majority of the Complaints Board said the television and cinema advertisements given their credible and realistic depiction of history had the effect of linking the brand’s origins to an important political event - the 1958 Black Budget. Observing all of the above, the majority of the Complaints Board was of the view that the television and cinema advertisements (which were also on the Advertiser’s website) were likely to mislead and deceive consumers given the realistic and accurate depiction of history conveyed in the advertisements and, therefore, were in breach of Basic Principle 3 and Rule 2 of the Code of Ethics. The majority of the Complaints Board was of the view that it wasn’t just the misappropriation of the footage of the riots that made the advertisements misleading but a combination of all the factors as noted above.

A minority disagreed and was of the view that the advertisements were not misleading as the television and cinema advertisements were clearly hyperbolic and portrayed the story from the perspective of the Brewery (which contained subjectivity and hyperbole). The minority said that it was within the Advertiser’s ‘creative licence’ to portray the story in the way that they had and that the use of the brief footage was one way of illustrating the discontent that the Brewery perceived was felt at the time with regard to the 1958 Black Budget. Accordingly, the minority of the Complaints Board was of the view that the television and cinema advertisements (which were also displayed on the Advertiser’s website) were not misleading and, accordingly, not in breach of Rule 2 and Basic Principle 3 of the Code of Ethics.

The majority of the Complaints Board considered all the advertisements with reference to Principle 2 of the Code for Advertising Liquor and was of the view that the advertisements were not in breach of this Principle. In making this ruling the majority took into account the focus of the Code for Advertising Liquor on matters relating to moderation and adult audiences, and did not consider the matters the complaint was upheld on triggered a breach of this Code.

A minority of the Complaints Board disagreed and said that given the advertisements were misleading and had the effect of linking the brand’s origins to an important political event - the 1958 Black Budget, the advertisements did not observe the high standard of social responsibility required by Principle 2 of the Code for Advertising Liquor, and, accordingly, said that the advertisements were in breach of this Principle.

Therefore, the Complaints Board ruled that in accordance with the majority’s view, the complaint be upheld in-part with regard to the television and cinema advertisements (which were also displayed on the Advertiser’s website) and not upheld with regard to the newspaper advertisement.

Decision: Complaint Upheld (in-part)

ENDS

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