Background
This Ruling forms part of a wider piece of work on the promotion of electronic cigarettes through affiliate schemes, identified for investigation following intelligence gathered by the ASA. See also related rulings published on 26 June 2024.
Ad description
A website for Apollo Vapes UK, www.apolloecigs.co.uk, an electronic cigarette brand, seen on 17 January 2024, featured a page titled “Affiliate Program” that stated, “1.Online Affiliates If you have a website (or other online marketing channels) that can help promote Apollo products and send traffic to our website, you can use your website to indirectly generate sales. You will receive your own unique URL which will automatically track all sales generated from your website. We even provide you with banner ads and text links that you can just choose, copy & paste”. Text below stated, “Click here to create an Apollo affiliate account”.
Issue
The ASA challenged whether the ad breached the Code by irresponsibly encouraging the promotion of e-cigarettes and related components online, because unlicensed nicotine-containing e-liquids and their components could not be promoted in online media.Response
Apollo Future Technology Ltd t/a Apollo Vapes UK said they had removed the affiliate page from their website.
They said their UK affiliate programme in the UK worked with product review websites, which were for adult vape users. They reviewed products and ranked them. They did not believe they breached UK regulations by allowing those sites to review their products, but would stop working with them if that was the case.
Assessment
Upheld
CAP Code rule 22.12 reflected a legislative ban contained in the Tobacco and Related Products Regulations 2016 (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, which were not licensed as medicines, were not permitted in newspapers, magazines and periodicals, or in online media and some other forms of electronic media. The ASA had previously found ads promoting nicotine-containing e-cigarettes on public social media accounts on Facebook, Instagram, YouTube, Discord and TikTok in breach of CAP Code rule 22.12.
The ad was not for specific named e-cigarette or vaping products, and as such we considered it did not have the direct effect of promoting unlicensed nicotine-containing e-cigarettes. We therefore assessed whether the ad had the indirect effect of promoting such products.
The Apollo Affiliate Program webpage featured linked text that individuals could click to enter their details to become an online affiliate. It also set out the benefits of becoming an affiliate which included the money they could make, receiving a unique URL to track sales, as well as banners and images provided by Apollo to add to the affiliate websites. The webpage stated, “If you have a website (or other online marketing channels) that can help promote Apollo products and send traffic to our website, you can use your website to indirectly generate sales”. We considered the reference to “other online marketing channels” included social media and therefore the ad encouraged people to become Apollo Affiliates, who in turn would promote the sale of e-cigarettes and their components on the advertiser’s behalf on social media. Consequently, the restriction that applied to online media under rule 22.12 was applicable. We therefore considered that this meant the ad had the indirect effect of promoting the sale of nicotine-containing e-cigarettes and their components, which were not licensed as medicines in online media, by means of the affiliate programme. We further considered that by encouraging people to promote the sale of such products on social media, the ad incited prospective affiliates to breach the Code and the legislative ban contained in the TRPR.
Because the ad had the indirect effect of promoting e-cigarettes, which were not licensed as medicines in non-permitted media, and irresponsibly incited people to break the law, we concluded that it breached the Code.The ad breached CAP Code (Edition 12) rules 1.3 (Social responsibility), 1.10 (Legality), and 22.12 (Electronic cigarettes).
Action
The ad must not appear again in the form investigated. We told Apollo Future Technology Ltd t/a Apollo Vapes UK to ensure that future marketing communications must not have the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components, which were not licensed as medicines, for example through the advertising of affiliate schemes. We also told them to ensure that they did not incite people to break the law.
