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 JAC Vapour, www.jacvapour.com, an e-cigarette retailer seen on 18 January 2024, featured a page titled “JAC Ambassador” that included text that stated “Tips for sharing. Here are some tips on how you can share and promote your JAC link/code: Get Social: Why not share on your social media accounts? Try and get personal by sharing why you like JAC along with images of what you use and how your special code can help them get started for less; Community forums & groups: Does your village/town have a Facebook or other social media page? Are you part of any hobby or special interest groups? Talk about JAC and watch your referrals roll in! […]”.
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
Magflo Ltd t/a JAC Vapour said the original intention of the JAC Ambassador programme was to enable existing JAC Vapour customers to share success stories, thereby providing smokers with information on less harmful alternatives in a manner that was responsible and consistent with public health goals. Following contact from the ASA, they had made changes to the ad to better reflect that intention.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 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 ASA had previously found ads promoting nicotine-containing e-cigarettes on public social media accounts on Facebook, Instagram, TikTok, Discord and YouTube 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 JAC Ambassador webpage featured a contact form into which people could enter their details to receive a unique affiliate link and discount code. The page detailed the benefits of becoming an Ambassador, which included a cut of the value of orders placed with JAC Vapour using the affiliate link, and a 10% discount code for family and friends. The page also gave tips for sharing the affiliate link and discount code on social media. The ad therefore encouraged people to become JAC Ambassadors who in turn would promote the sale of e-cigarettes on the advertiser’s behalf on social media. We considered that 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. We further considered that by encouraging people to promote the sale of such e-cigarettes on social media, the ad incited prospective affiliates to breach the Code, and the legislative ban contained in the TRPR.
For those reasons we concluded the ad was irresponsible and therefore 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 Magflo Ltd t/a JAC Vapour to ensure that future marketing communications must not have the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components, for example through the advertising of affiliate schemes. We also told them to ensure they did not incite people to break the law.
