Background
Summary of Council decision:
Two issues were investigated both of which were Upheld.
Ad description
A national press ad, for an electronic cigarette, which appeared under an advertising feature titled "Stub it out for good", which discussed the national stop smoking campaign Stoptober, was headed "Switchtober 2013" and featured an image of a calendar page with the first day marked with the No Match logo, which was a match with a cross through it.
Issue
The complainant challenged whether the ad breached the Code, because:
1. it implied that the product was suitable for use as a smoking cessation device; and
2. it misleadingly implied that the product was associated with Stoptober.
Investigated under CAP Code (Edition 12) rules 3.50 (Endorsements and testimonials) and 12.1 (Medicines, medical devices, health-related products and beauty products).
Response
No Match said they made every effort to ensure that their products were not confused with smoking cessation devices. They told us they had been informed by the newspaper that they were having a section on electronic cigarettes and that they had been unaware of the exact content of the advertising feature prior to publication and had not had any control over it. They said their ad was headed "Switchtober 2013", which was a phrase they had coined themselves and was not a reference to Stoptober, and that the ad did not refer to the product as a smoking cessation device or imply that that was what it was. They advised that they also used other such phrases in their ads, such as "Dealcember".
Assessment
1 & 2 Upheld
The ASA was concerned that, given the similarity between the phrases "Switchtober" and "Stoptober", consumers were likely to understand that the product was in some way associated with or endorsed by Stoptober, and that therefore they were likely to believe that the product was suitable for use as a smoking cessation device. We were further concerned that that impression was enhanced by the image of a calendar, with the first date marked off with an image of a match with a cross through it, which we considered implied consumers would no longer need matches to light their cigarettes, and also because we understood that crossing off days on a calendar was sometimes associated with keeping track of resolutions. Because we considered the ad implied that consumers could use the product for smoking cessation and we understood that the product had not been licensed by the MHRA for that purpose, we concluded that the ad breached the Code in that regard.
The ad breached CAP Code (Edition 12) rules
3.50
3.50
Marketing communications must not display a trust mark, quality mark or equivalent without the necessary authorisation. Marketing communications must not claim that the marketer (or any other entity referred to), the marketing communication or the advertised product has been approved, endorsed or authorised by any public or other body if it has not or without complying with the terms of the approval, endorsement or authorisation.
(Endorsements and testimonials) and
12.1
12.1
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease.
and
12.11
12.11
Medicines must have a licence from the MHRA, VMD or under the auspices of the EMA before they are marketed. Marketing communications for medicines must conform with the licence and the product's summary of product characteristics. For the avoidance of doubt, by conforming with the product's indicated use, a marketing communication would not breach rule 12.2.
Marketing communications must not suggest that a product is "special" or "different" because it has been granted a licence by the MHRA, VMD or under the auspices of the EMA.
(Medicines, medical devices, health-related products and beauty products).
Action
We told NM to ensure they did not imply that their product was suitable for use as a smoking cessation device, or associated with any stop smoking campaigns, in future.
