Ad description
A press advertorial from the Independent British Vape Trade Association (IBVTA) seen in the East Lothian Courier on 26 October 2023, featured the headline “Let’s clear the smoke of confusion: Vaping saves smokers’ lives”. The article contained an image of the Chair of the IBVTA, standing in front of a billboard that stated, “Vaping instead of smoking, helps saves smokers’ lives”. Further text in the image of the poster stated “Always buy from reputable retailers”.
Text in the ad stated, “a constant stream of negative headlines is eroding the public’s understanding of vaping’s benefits, particularly among smokers”. Further text stated, “the IBVTA is now seeking to challenge some of the misinformation we’ve seen over recent months and to educate smokers about the benefits of vaping”. Further text stated, “the IBVTA, representing the UK’s leading independent vape manufacturers, importers, distributors, and vendors, is launching a major national public information campaign to meet this responsibility. This campaign is accompanied by substantial new consumer insights that provide a comprehensive view of vaping, its various devices, and how smokers are using them to quit”. Further text stated, “Our research uncovers the different types of vaping devices used by smokers at various stages of their quitting journey”.
Further text stated, “Single-use vapes, due to their user-friendly nature, play a crucial role in the initial transition away from tobacco, with 53% of regular smokers and 61% of recent ex-smokers using single use devices […] This transition further underscores the vital role that vaping, in all its forms, plays in helping smokers quit and preventing relapses”.
A further paragraph stated, “It should also reflect the compelling evidence that vaping, particularly when using flavoured devices, is pivotal in achieving the Scottish Government’s smoke-free ambitions”.
Text at the end of the ad stated, “For more information about the campaign and the research supporting it, please visit www.ibvta.org.uk/explorethefacts”.
Issue
The ASA challenged whether the ad breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components in a newspaper.
Response
The Independent British Vape Trade Association t/a IBVTA said they were a trade body and not-for-profit organisation funded by independent vaping businesses, and that they did not sell or supply vaping products of any type, and therefore did not promote any specific brand or vaping product.
They stated the ad presented factual information about vaping and presented findings from a piece of research about consumers’ views on vaping. They highlighted that the ad was published during a time of public misunderstanding of vaping harms, including that vaping was more harmful than smoking.
They did not believe the ad had the indirect effect of promoting unlicensed nicotine-containing e-cigarettes because it did not reference a specific brand or vaping product, and that the ad merely highlighted consumer research or publicly available information regarding misunderstanding about vaping harms. They said the ad was factual, not promotional, in nature and only presented information that could be readily substantiated. Regarding the claim “Always buy from reputable retailers”, they said that this statement was a reminder to buy from a reputable retailer, rather than retailers who were trading illicit products, or were otherwise breaking the law.
The IBVTA said the agency who had prepared the ad on their behalf had submitted the ad to the CAP Copy Advice team, and they did not believe that they had raised its publication in a newspaper as an issue.
LOCALiQ, the agency that manages the ad space in the East Lothian Courier, responded on their behalf. They confirmed that they had not received any further complaints directly about the ad. LOCALiQ said the agency working on behalf of the IBVTA had confirmed to them that they had sought a view from the CAP Copy Advice team, who advised that the claims in the ad would need to be able to be substantiated. LOCALiQ received evidence to substantiate it and so accepted the ad on that basis.
Assessment
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.
The ad was published in a local Scottish newspaper in response to the Scottish Government’s proposal to ban the sale of disposable vapes by 2025. The ad promoted e-cigarettes generally, and the ASA considered a number of those would be unlicensed as medicines for the purposes of rule 22.12. However, we noted the ad did not reference a specific brand of vape or vaping product and as such, we considered the ad did not have the direct effect of promoting unlicensed nicotine-containing e-cigarettes. We therefore considered whether the ad had the indirect effect of promoting such products. We acknowledged that the agency who had prepared the ad had consulted with the CAP Copy Advice team prior to publication. We understood they had advised that legal advice be sought as to whether the TRPR would apply to this ad, which was reflected by CAP Code rule 22.12.
The ad highlighted that IBVTA were using their information campaign to “educate smokers about the benefits of vaping”. We considered the ad emphasised one of those benefits was smoking cessation; text in the ad stated, “how smokers are using them to quit”, “vaping devices used by smokers at various stages of their quitting journey” and “the vital role that vaping, in all its forms, plays in helping smokers quit and preventing relapses”. That impression was reinforced by the claim “It should also reflect the compelling evidence that vaping, particularly when using flavoured devices, is pivotal in achieving the Scottish Government’s smoke-free ambitions” and “Single-use vapes, due to their user-friendly nature, play a crucial role in the initial transition away from tobacco”. We considered that readers would understand those claims referred to nicotine-containing e-cigarettes because they were associated with stopping smoking. As such, we considered the ad had the indirect effect of promoting those types of e-cigarettes.
The ad also discussed the wider benefits of using e-cigarettes; the ad stated “a constant stream of negative headlines is eroding the public’s understanding of vaping’s benefits, particularly among smokers” which we considered was a claim inclusive of nicotine-containing e-cigarettes and suggested that vaping had further health benefits to smokers and non-smokers alike. As such, we considered that claim also had the indirect effect of promoting unlicensed nicotine-containing e-cigarettes.
We noted the ad contained a link to the IBVTA website to allow consumers to find out further information about the campaign. We noted that the website also listed retailers and vendors of vapes that were members of the IBVTA and had a ‘Find a vape shop’ feature, where consumers could find a nearby retailer. We considered that had the further effect of indirectly promoting unlicensed nicotine-containing e-cigarettes as consumers would be able to use the IBVTA website to purchase such products. Text in the image of the poster in the ad also stated, “Always buy from reputable retailers”, which we considered further encouraged readers to access the website and “Find a vape shop” feature.
Because the ad had the indirect effect of promoting e-cigarettes, which were not licensed as medicines in non-permitted media, we concluded that it breached the Code.
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 the Independent British Vape Trade Association t/a IBVTA that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components, which were not licensed as medicines, should not be published in a newspaper that is not covered by the exception to media targeted exclusively to the trade.
