Are Candy Canes for Kids?

Apr 3rd '24

Reposted from Advertising Law Updates


Do candy canes have special attractiveness to kids?  That was the issue in a recent decision issued by the Distilled Spirits Council of the United States [DISCUS]. 


The DISCUS Code of Responsible Practices for Beverage Alcohol Advertising and Marketing prohibits distilled spirits marketers from advertising their products to underage consumers.   According to the Code, advertising and marketing materials should “primarily appeal” to people who are at least 21 years old.  Materials are considered to “primarily appeal” to underage consumers “if they have special attractiveness to such persons beyond the general attractiveness for persons of legal purchase age.”


Sazerac’s Fireball Whisky brand ran a promotion featuring candy cane shaped packaging.  Apparently, the company sold big plastic candy canes that included small bottles of the whisky.


An industry member complained to DISCUS, arguing that the use of the candy cane themed packaging violated the DISCUS Code, on the grounds that it has primary appeal to minors.  Sazerac vigorously disputed the complaint.


The DISCUS Code Review Board said that reviewed the parties’ arguments and could not reach a majority decision about whether the promotion violated its Code.  (It didn’t share any more details about what the specific areas of dispute were.)  In accordance with the DISCUS Code procedures, the complaint was then forwarded to the DISCUS Outside Advisory Board for its own review.


The Outside Review Board determined – without sharing its reasoning — that the promotion did not violate the DISCUS Code, holding that the Fireball packaging did not have special attractiveness or appeal to individuals below the purchase age.  The Board said, however, that “caution was warranted when using holiday or candy themed packaging to ensure the elements of the packaging, such as coloring and related imagery, do not have special attractiveness to underage individuals.”


Image: GALA


Source: Global Advertising Lawyers Alliance (GALA). By Jeff Greenbaum at Frankfurt Kurnit Klein & Selz.


About GALA

GALA is an alliance of lawyers located throughout the world with expertise and experience in advertising, marketing and promotion law. GALA provides a worldwide resource to individuals and corporations interested in answers to questions and solutions to problems involving the complex legal issues affecting advertisers and marketers. GALA, a network of independent law firms, is neither licensed nor authorized to render legal services.


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