Background
Summary of Council decision:
Three issues were investigated, of which two were Upheld and one was Not upheld.
Ad description
A cinema ad and a post seen on IVG Vape’s LinkedIn page in August 2024:
a. The cinema ad began with on-screen text that said, “Every year, more than 8 million people die from tobacco use – World Health Organisation (WHO)”. Vape products were then shown with the text “Our aim is to help tobacco users make the switch IVG”. Further text then said, “E-cigarettes are around 95% less harmful than smoking – Public Health England (PHE)”. Further vape products were shown and on-screen text stated, “We are the adult smoking alternative”. The ad ended with a shot of three IVG vape products and the text “IVG Award Winning British Brand”. Text at the bottom of the screen that ran for the duration of the ad said, “This product contains nicotine which is a highly addictive substance. 18+ only”.
b. The LinkedIn post stated, “Exciting news. We're thrilled to announce that our latest advert will be hitting the big screens across Vue, Odeon, and Cineworld cinemas across the UK! You can catch our ad right before the highly anticipated Deadpool and Wolverine film. Don't miss it!” A video under the text had the same content as ad (a).
Issue
The complainant, a freelance public health researcher, challenged whether:
- the claim “95% less harmful than smoking” in ad (a) was misleading and could be substantiated; and
- ad (a) had been directed at people under 18 years of age through the selection of media in which it appeared.
- The ASA challenged whether ad (b) promoted e-cigarettes on IVG Vape’s LinkedIn page, a medium in which advertising unlicensed nicotine-containing e-cigarettes and their components was prohibited, and therefore breached the Code.
Response
1. ACME Vape Ltd t/a IVG Vapes said that the claim “95% less harmful than smoking” was a direct quote from Public Health England (PHE). They stated the claim was not misleading because it came from a government report that was easily accessible to the public online.
The Cinema Advertising Association (CAA) said they had received substantiation from IVG Vapes in the form of a press release from the UK Government regarding an expert independent review, first published in 2015 and commissioned by PHE. They understood that the 95% figure had not been amended or removed since then, despite repeated updates. Further to that, they said the NHS endorsed the spirit of the claim with information currently on the NHS website which stated that in 2022 UK experts reviewed international evidence and concluded that "in the short and medium-term, vaping poses a small fraction of the risks of smoking".
They explained that the “95% less harmful than smoking” statement was based not on the chemical contents of vapes themselves, but on the absence from vapes of known carcinogenic chemicals present in tobacco smoke and any other known carcinogenic chemicals. They said the claim therefore was not based on individual vapes or specific manufacturers but applied to vaping in general. They maintained that due to that, the PHE claim was incapable of objective substantiation as understood under the Code. It was not quantified by the objective testing of vapes on human individuals over any period of time but estimated by experts making a judgement based on the lack of known carcinogens in nicotine vapes. They believed that as the PHE statement was not underpinned by objective substantiation as understood under the Code, it was unreasonable to expect IVG Vapes to provide substantiation for the claim. They said that all of the contents of IVG Vapes’ nicotine-containing vapes, like any nicotine-containing vapes, had been notified to the MHRA and so complied with the Tobacco Products Directive. It was therefore unnecessary to provide evidence to support the PHE claim because if any nicotine-containing vape did carry any known carcinogens, such that they would fall outside of the PHE statement, the MHRA would not legally allow them to be sold. They said further that stating that something carried a 5% risk of physical damage was not the same as saying it was healthy and therefore the claim was not a health claim.
They also stated that not permitting the PHE statement, and any other justified risk statistics, would not be in the public interest. They believed that including a figure, from an authoritative source, on the reduction of risk from changing a method of nicotine inhalation was beneficial to the individual and society. On that basis they believed the claim was not misleading and did not need any further substantiation.
2. IVG Vapes explained that they were advised by two cinema advertising companies where best to place the ad, taking into account the restrictions on advertising within the vaping sector. It had not been indicated that placing the ad before Deadpool & Wolverine would mean that it was directed at people under 18.
The CAA said the ad was restricted so that it could not be shown before any films with a national audience profile of 25% or more under 18s. The film was not deemed of youth appeal due to its 15 certificate. They had also used independent statistics to create a predictive national audience profile for Deadpool & Wolverine, and the audience statistics showed that only 3% of viewers were in the 15 to 17 age group.
3. IVG Vapes said that the LinkedIn post was published as an organic post to their professional network as an update on their marketing activities. It was therefore not a sales message.
Assessment
1. Upheld
The CAP Code stated before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.
Ad (a), which was not subject to the media prohibitions under CAP Code rule 22.12, stated, “E-cigarettes are around 95% less harmful than smoking – Public Health England (PHE)”. While PHE had been disbanded in 2021, we acknowledged that the claim had come from a publicly accessible PHE report from 2015 and understood that the statement had not been withdrawn or rescinded. However, we considered that consumers were likely to interpret the claim to mean that by using IVG Vapes’ e-cigarettes, existing smokers could improve their overall health, and therefore it was an implied health claim relating to IVG Vapes’ products.
While we noted that the ad displayed individual e-cigarette products, it did so without focusing on particular items or providing item-specific information. The ad also briefly featured a wide range of products in one shot, without making clear what the individual products were, and made references to the brand in general. We therefore considered that the ad was likely to be interpreted as promoting the IVG Vapes range in general, rather than individual vapes. For that reason, evidence to support the claim that the products were 95% less harmful than smoking should be based on IVG Vapes’ entire range.
We acknowledged the CAA’s comment that IVG Vape’s products had been notified to the MHRA. The MHRA was responsible for the operation of the e-cigarette notifications scheme and adverse reaction reporting mechanism for the UK. However, we understood that the MHRA’s statutory duties in administering the notifications scheme did not extend to assessing the relative safety of e-cigarette products compared to smoking.
We had not seen any evidence that showed IVG Vapes’ products, individually or as a range, were 95% less harmful than smoking, and we therefore concluded that the claim was misleading.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 (Misleadingness), 3.7 (Substantiation) and 12.1 (Medicines, medical devices, health-related products and beauty products).
2. Not upheld
The CAP Code stated marketing communications must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should have been used to advertise e-cigarettes if more than 25% of its audience was under 18 years of age.
We noted the ad was shown before the film Deadpool & Wolverine, which had a 15 certificate. We further acknowledged the research the CAA had undertaken, which they stated showed that the film had an audience of only 3% of 15–17-year-olds, and they believed on that basis that Deadpool & Wolverine was not of youth appeal.
We considered that due to the 15 rating of the film Deadpool & Wolverine, the ad had not been directed at people under 18, although we acknowledged those aged 15 to 17 could have seen it. However, based on the CAA research, we understood that those under 18 were unlikely to make up more than 25% of the audience. We therefore concluded that the ad had not been directed at people under 18 through the selection of media in which it appeared.
On that point, we investigated the ad under CAP Code (Edition 12) rule 22.11 (Electronic cigarettes), but did not find it in breach.
3. Upheld
CAP Code rule 22.12 reflected a legislative ban contained in the Tobacco and Related Products Regulations (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. The rule stated that, except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that were not licensed as medicines were not permitted in newspapers, magazines and periodicals, or in online media and some other forms of electronic media. It further stated that factual claims about products were permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control.
The CAP guidance on “Electronic cigarette advertising prohibitions” (the Guidance) explained that the prohibition on ads in “online media and some other forms of electronic media” reflected the legal prohibition on ads in “information society services”. The Guidance indicated that ads placed in paid-for social media placements, advertisement features and contextually targeted branded content were likely to be prohibited.
We noted IVG Vapes’ response that the post was not paid for, and only updated their followers on their marketing activities, and therefore it was not an ad. The post included text announcing the upcoming release of their new cinema ad. The second part, beneath the text, was an embedded video of the actual cinema ad. The video was advertising material promoting IVG Vapes’ products on social media, which we considered established that the overall post was a marketing communication falling within the remit of the CAP Code.
Rule 22.12 stated that media targeted exclusively to the trade could promote nicotine-containing e-cigarettes and their components. We therefore considered whether LinkedIn was a medium targeted exclusively to the trade. LinkedIn was a business and employment-focused social media platform. Therefore, we considered it was likely that many of those who followed IVG Vapes’ account were professionals including those in related industries. However, we understood it was unlikely that their followers belonged exclusively to the trade. In addition, we understood that it was possible for public posts from a LinkedIn account to be distributed beyond those users who had signed up to follow it. For instance, if an individual interacted with IVG Vapes’ content, then the original content would be pushed out to that individual’s LinkedIn connections, not all of whom would be involved in the e-cigarette trade. Further to that, LinkedIn could serve suggested posts from outside of a user’s network that they believed could be relevant based on their preferences and use history. For those reasons, we considered the media was not targeted exclusively to the trade.
While promotional content was prohibited on retailers’ own websites and in other non-paid-for space online, rule 22.12 specified a particular exception for the provision of factual information, because consumers had to specifically seek out that factual information by visiting a website. The Guidance stated that, in principle, there was likely to be scope for the position relating to factual claims being acceptable on marketers’ websites, to apply to some social media activity. A social media page or account might be considered to be analogous to a website, and so factual claims could be permissible, if it could only be found by those actively seeking it. We therefore next considered whether LinkedIn was an online media space where factual content about nicotine-containing e-cigarettes and their components that were not licensed as medicines was permitted.
As stated previously, it was possible for non-paid-for public posts from a LinkedIn account to be distributed beyond those users who had signed up to follow the account, as suggested posts or if others that users were connected to interacted with IVG Vapes content. We considered that was consistent with content being pushed to consumers without having opted-in to receive the message it contained and therefore it was not equivalent to actively seeking out information about e-cigarettes on an advertiser’s website. Given that, we considered that material from a public LinkedIn account was not analogous to a retailer’s own website and that material posted from such an account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that neither promotional nor factual content was permitted.
We finally considered whether the post directly or indirectly promoted unlicensed nicotine-containing e-cigarettes. Unlicensed e-cigarettes, which it stated contained nicotine, were prominently featured in the video and its intent was for consumers to purchase IVG Vapes’ products as an “alternative” to smoking. We therefore considered that the ad contained promotional content for the products and consequently the restriction that applied to online media under rule 22.12 was applicable.
Because the ad had the direct effect of promoting e-cigarettes which were not licensed as medicines in non-permitted media, we concluded that it breached the Code.
On that point the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
Action
The ad must not appear again in the form complained of. We told ACME Vape Ltd t/a IVG Vapes to ensure they did not make health claims for their products, unless they could substantiate them. We also told them to ensure marketing communications that had the direct or indirect effect of promoting nicotine-containing e-cigarettes that were not licensed as medicine were not placed in unpermitted media.
