Background
Summary of Council decision:
Two issues were investigated, of which one was Upheld and one was Not upheld.
On 12 June 2013 the Medicines and Healthcare Products Regulatory Agency (MHRA) announced that, following a public consultation on how to regulate nicotine-containing products (NCPs) such as electronic cigarettes (e-cigarettes), all NCPs were to be regulated as medicines. The UK government will press for EU law to create a Europe-wide legal position on NCPs as medicines. The European Commission has said it expects the new legislation to be adopted in 2013 and for it to come into effect in the UK from 2016, at which point NCPs will require a medicines licence. Until that time, e-cigarettes, which make no medicinal claims, will continue to be regulated as consumer products in the UK.
The following adjudication relates to an ad broadcast prior to the MHRA's announcement of June 2013.
Ad description
A TV ad for electronic cigarettes, featured a '£' symbol next to animated images of various day-to-day activities and objects such as a beach holiday and a TV. The ad also featured animated images of cycling and a young family. The voice-over stated, "What's my motive? Finding them is easy as 1, 2, 3. I have more freedom, to be the real me, and do all the things I haven't done in a long time. Enjoying life with the people that matter most. Ten motives. What's your motive?" On-screen text stated "www.tenmotives.com What's your motive?".
Issue
A viewer challenged whether the ad:
1. was misleading because it encouraged viewers, and particularly young adults and children, to visit the website but did not make clear the characteristics of the product; and
2. was irresponsible and harmful, because it promoted a nicotine-based product.
Response
1. Ten Motives stated that the ad was written from the perspective of an adult male and featured an animated adult male character. They said that the only reference to children was when the character talked about "the people that matter most", which was a reference to spending time with his loved ones. They said that at no point during the ad was the viewer asked or encouraged to visit the website and that the URL simply featured on the screen in graphics at the end of the ad.
Clearcast said they ensured that the ad was given an ex-kids restriction to guarantee it was kept away from children's programming and that, in their opinion, the ad did not show youth appeal and that it did not aim its voiceover at young people. They said the ad was very much directed at adults because it highlighted "the people that matter most", whilst showing an image of a family. They said they had understood from the Code rule relating to prohibited categories, that making clear the characteristics of the product would itself contravene that Code rule.
2. Ten Motives said it had not been proven that smoking nicotine based e-cigarettes was harmful and that there already existed a large body of research (prior to e-cigarettes becoming popular) stating that nicotine had no harmful effects, especially in the quantities found in e-cigarettes. They said they consequently understood that these products did not fall under the legislative framework surrounding tobacco advertising and sales.
Clearcast said that whilst e-cigarettes were a controversial product, they were legal and, unlike tobacco products, had not been proven to be harmful. They believed it would be going beyond the requirements of the BCAP Code if they were to refuse all advertising for e-cigarettes on the grounds of social responsibility.
Assessment
1. Upheld
The ASA noted the ad featured various images of everyday objects along with an image of a young family. We considered that although those images were animated, they were not displayed in such a way that they were likely to be particularly attractive to younger children and further noted the ad had been given an ex-kids restriction, which meant it would not be broadcast around programmes that were of particular appeal to children.
However, we noted the ad did not identify the type of product being promoted and considered that this was significant material information which was necessary for viewers if they then wished to find out more. We therefore considered that inquisitive consumers, including older children who may have been watching at that time, could have been attracted by the repeated claim "What's my motive?" along with reference to "freedom" and were likely to have visited the website detailed at the end of the ad in order to find out more about the product being advertised, thus resulting in an action they would not otherwise have taken if they were aware of what was being advertised.
We noted that both the advertiser and Clearcast had understood that the references to the type of product (e-cigarettes) or the product name, were prohibited by the BCAP Code and that this was the reason they omitted that information from the ad. We understood that the BCAP Code rule only required that ads for non-tobacco products, such as e-cigarettes, did not reference or promote smoking or tobacco and did not include a "design, colour, imagery, logo style or the like that might be associated in the audiences mind with a tobacco product". However, we considered that this rule did not prevent an ad containing verbal or text reference to an 'e-cig', 'e-cigarette' or 'vaporator', or information indicating that the product contained nicotine, providing the ad did not also create a link between that product and smoking or tobacco products. We considered it important that ads such as this made clear the nature of the product being advertised and stated whether or not it contained nicotine. We judged that to be material information the consumer needed to know in order to avoid the likelihood of being misled. Because the ad did not make clear the nature of the product being advertised and did not state that the product contained nicotine, we concluded that the ad was misleading.
On this point the ad breached BCAP Code rules
3.1
3.1
Advertisements must not materially mislead or be likely to do so.
and
3.2
3.2
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
(Misleading advertising)
2. Not upheld.
The ASA noted the MHRA confirmed that the government would regulate electronic cigarettes and other NCPs as medicines. We noted the advertised product contained nicotine, a pharmacologically active agent, the presence of which in other circumstances might render a product medicinal, which would require it to hold a medicines licence. However, we noted the MHRA had in 2011, prior to their final determination on the matter, not removed such products from the market whilst marketers went through the process of obtaining the required licences, owing to the potential public health benefits and therefore understood that they could continue to be advertised providing they adhered to the CAP and BCAP Codes.
We considered that because nicotine products could continue to be marketed during the licence application period, and because they were not a prohibited category under the advertising Codes (such as tobacco products), the advertising of those products would not automatically be found to be harmful providing they were advertised in a responsible manner. Furthermore, we noted the ad neither glamorised the nicotine product nor encouraged excessive or inappropriate use. We therefore considered that the content of the ad did not encourage the harmful use of a nicotine product and therefore concluded that the ad was not socially irresponsible.
On this point we investigated the ad under BCAP Code rule 1.2 1.2 Advertisements must be prepared with a sense of responsibility to the audience and to society. (Social responsibility) but did not find it in breach.
Action
The ad should not appear again in its current form. We told Ten Motives to ensure their future advertising clearly identified that their product was an e-cigarette and that it contained nicotine.
