Background
Summary of Council decision:
Six issues were investigated, of which one was Upheld and five Not upheld.
Ad description
A poster for a smartphone app and the website www.smoke-spots.co.uk:
1. The poster stated "Smoke Spots The Smoker's Social Home You choose where you drink, why not where you smoke? Find the best spots to smoke by location or event. Results matched specifically to your needs. Submit and read user reviews".
2. The website included claims such as "You want to hang out with friends, maybe go out at night - to pubs, restaurants or clubs. But as a smoker, it's not always easy. That's why we're here. Smoke Spots lets you chat with other smokers about where you can comfortably smoke whilst you're out. Our forums are the place to ask others where's best or share your own experiences. Our blog helps give you inspiration for a special occasion, trying somewhere in a new location or even where to go to watch your favourite sporting event. We've also got our pub database where you can conveniently search and find smoker friendly spots near you. Are you looking for a bar in Camden that has a covered smoking section? No problem! … For your information this information is provided by Imperial Tobacco Ltd …". The website also included a video, which appeared above the text "The Smoke Spots Team Hit London To show the people of London how nice it is when you can smoke in a comfortable smoke spot!".
Issue
The ASA received complaints from eight members of the public and from Cancer Research UK.
The complainants challenged whether the ads:
1. promoted a tobacco product; and
2. were, by promoting the activity of smoking, irresponsible and harmful, in particular because they believed they normalised smoking and could encourage non-smokers to start smoking or existing smokers to continue.
3. Cancer Research UK and one of the complainants challenged whether the ads were irresponsible, because they did not make clear the harmful and addictive effects of smoking.
Cancer Research UK also challenged whether the ads were:
4. irresponsible because they did not make clear the unsuitability of the product for under-18s;
5. inappropriate for display where they could be seen by children; and
6. misleading, because they did not make clear the identity of the advertiser.
Response
1. Imperial Tobacco UK Ltd t/a Smoke Spots said the definition of a tobacco product was "a product consisting wholly or partly of tobacco and intended to be smoked, sniffed, sucked or chewed". Because the service being promoted did not fall into that definition, they were confident that the ads did not promote a tobacco product. They said they had given that careful consideration. The ads merely provided details about an information service that identified locations where it was legal and appropriate to smoke but did not in any way promote a tobacco product or brand.
2. Smoke Spots said they had taken particular care to ensure the ads did not promote smoking or normalise it. The wording had been carefully selected to ensure it targeted existing smokers and did not suggest that they should increase the amount they smoked or suggest to non-smokers that they should start smoking. Instead, the ads encouraged those who had already made the adult choice to smoke to download the app, which informed them where they could smoke legally and in comfort. They believed they did so responsibly and made a comparison with websites that provided information about where to drink alcohol or gamble. They said ad (b) was deliberately plainly coloured and most of the information on the home page related to the locations of venues with smoking areas, as recommended by other smokers. They believed that emphasised the site was intended to provide information about such locations and that it did not promote or encourage the act of smoking. They pointed out that the challenged claims appeared on the 'about' page of the website, which would need to be sought out by consumers. They believed that in the context of the rest of the website, it was clear its purpose, and that of the app, was to provide existing smokers with information about where they could smoke in comfort. Smoke Spots said they had nevertheless removed the video link and would amend the wording of the 'about' section of ad (b).
3. Smoke Spots said there was no obligation for the ads to make clear the risks of smoking, in the same way that ads for alcohol or 'unhealthy' foods did not.
4. Smoke Spots said ad (a) made clear via its content that it was targeted at existing smokers, who must legally be over the age of 18. They had deliberately used plain unobtrusive text that was not likely to appeal to under-18s. In addition, the app itself was age-gated and therefore access was controlled according to restrictions relevant to the type of device being used.
They said ad (b) was age-gated and therefore made prominently clear that the service was not suitable for under-18s.
5. Smoke Spots said they had taken steps to ensure the ad did not appear on poster sites within 200 metres of schools or hospitals. They reiterated that plain and unobtrusive text had been used to ensure it was not likely to appeal to children or to encourage them to interact with it.
JCDecaux, the owner of the sites where the posters appeared, said they had not received any complaints about ad (a) directly.
Smoke Spots said ad (b) was age-gated and therefore they had taken the available steps to ensure it was available only to over-18s.
6. Smoke Spots said the ads did not promote any Imperial Tobacco product or brand but a free app, which provided an information service. They considered ad (a) was not misleading for not stating that the app was provided by Imperial Tobacco and pointed out that every page of ad (b) stated that the site was provided by Imperial Tobacco. The 'about us' page of the website clearly also stated that information.
Assessment
1. Not upheld
The ASA noted the advertised service was owned by a tobacco company. However, the ads did not include any reference to tobacco products. Instead they related directly to a service that provided, and allowed users to share, information about locations where smoking was permitted. We therefore concluded that the ads did not promote tobacco products.
On that point, we investigated ads (a) and (b) under CAP Code (Edition 12) rule 21.1 21.1 Tobacco products may not be advertised to the public. (Tobacco, rolling papers and filters), but did not find them in breach.
2. Upheld
We noted the ads neither explicitly encouraged non-smokers to start smoking nor existing smokers to continue, and acknowledged that tobacco was a legally available product. We also acknowledged that some consumers might find the service distasteful but, again, understood it was legally available and noted there were no specific restrictions on the advertising of such services. However, we noted that ad (a) included the text "Smoke Spots The Smoker's Social Home You choose where you drink, why not where you smoke? Find the best spots to smoke by location or event …". Ad (b) included text such as "Smoke Spots lets you chat with other smokers about where you can comfortably smoke whilst you're out … We've also got our pub database where you can conveniently search and find smoker friendly spots near you. Are you looking for a bar in Camden that has a covered smoking section? No problem! … how nice it is when you can smoke in a comfortable smoke spot!". In addition, it included a link to a video which featured several people smoking. We considered such elements presented smoking in a positive light and that the overall impression of the ads was that they normalised and condoned smoking, which was an unsafe practice. We therefore concluded that they were harmful and irresponsible on that point.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising) and 4.5 4.5 Marketing communications, especially those addressed to or depicting a child, must not condone or encourage an unsafe practice (see Section 5: Children). (Harm and offence).
3. Not upheld
Notwithstanding the concerns set out above, that the ads condoned smoking, we considered adult consumers were likely to be aware of the risks associated with it. We therefore considered that the ads were not irresponsible as a result of not making clear the harmful and addictive effects of smoking and concluded that they did not breach the Code on that point.
On that point, we investigated ads (a) and (b) under CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising), but did not find them in breach.
4. & 5. Not upheld
We considered the content of the ads was unlikely to be of particular appeal to children and, notwithstanding our concern that they condoned an unsafe practice, that they were therefore not irresponsible or unsuitable for public display, provided they were suitably targeted. We noted that ad (b) made clear at the outset that the service was not suitable for any under-18s that might have located it and understood Smoke Spots had taken steps to ensure the posters did not appear in close proximity to schools. In those circumstances, we considered it was not irresponsible for ad (a) not to explicitly state that the advertised service was not suitable for under-18s. We concluded that the ads were appropriately targeted and were not irresponsible on those points.
On those points, we considered ads (a) and (b) under CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Responsible advertising), but did not find them in breach.
6. Not upheld
We noted ad (b) stated "2014 Imperial Tobacco" at the bottom of each page and included the text "For your information this information is provided by Imperial Tobacco Ltd …" on the 'about' page. We considered the identity of the marketer was clear and that ad (b) was not misleading.
Although ad (a) did not include any details of the company that owned the service, we considered consumers were likely to make a decision on whether to make further enquiries about it on the basis of its nature, and that the identity of the company that owned it was not material information in those circumstances. We therefore concluded that ad (a) was also not misleading.
On that point, we investigated ads (a) and (b) under CAP Code (Edition 12) rule
3.5
3.5
Marketing communications must not materially mislead by omitting the identity of the marketer.
Some marketing communications must include the marketer's identity and contact details. Marketing communications that fall under the Database Practice or Employment sections of the Code must comply with the more detailed rules in those sections.
Marketers should note the law requires marketers to identify themselves in some marketing communications. Marketers should take legal advice.
(Misleading advertising), but did not find them in breach.
Action
The ads must not appear again in their current form. We told Smoke Spots to ensure their future advertising did not condone or encourage an unsafe practice.
