Ad description
A national press ad for Nicolites electronic cigarettes included the text "THE SAFER SMOKING ALTERNATIVE" and "HEALTHIER No tobacco, tar or carbon monoxide".
Issue
The complainant challenged whether the claims "THE SAFER SMOKING ALTERNATIVE" and "HEALTHIER No tobacco, tar or carbon monoxide" misleadingly implied the product was not harmful. He challenged whether the claims could be substantiated.
Response
Nicocigs said they recognised that the ad was misleading in the absence of substantiation for the "safer" and "healthier" claims. They said the intention of the ad was to draw attention to what was not in the product rather than what was in it and the ad therefore did not specifically refer to the nicotine that it contained. However, the name of the product and their wider communication made clear that nicotine was present. They said the ad had appeared only once and was produced at short notice, with no intention of it being repeated. They said there were studies in progress that they believed would recognise the value of e-cigarettes and their benefits in comparison to smoking. However, the claims would not be repeated without adequate substantiation. Nicocigs said a review of their marketing communication was already underway when the ASA contacted them and a new agency, which was clear on its responsibilities in terms of compliance, had been appointed.
Assessment
Upheld
The ASA acknowledged that Nicocigs did not intend to repeat the claims. We considered it was not necessarily misleading if an ad did not specify each of the product's ingredients, for example nicotine. However, we considered the claims "THE SAFER SMOKING ALTERNATIVE" and "HEALTHIER No tobacco, tar or carbon monoxide" were nevertheless likely to be understood to mean the product was less harmful than smoking, if not that it was not harmful.
We noted Nicocigs did not submit evidence in support of the current claims, but that they had done so in a previous ASA investigation into an ad that included claims that the product was not harmful. That evidence included a toxicology risk assessment, which concluded that the e-cigarette was unlikely to pose a risk to health over and above that of cigarettes. However, we were concerned that that document did not take the form of a controlled clinical trial or that the other evidence submitted was not the entire studies. The evidence submitted had been in the form of literature reviews or references to individual ingredients in the product and had also made reference to studies involving animals. We noted one of the documents previously submitted referred to a trial that related to vaporising propylene glycol and children. We were concerned about the small scale of the study and the fact that it was not conducted on the target audience of the claims, which we presumed to be adults, and also whether the ingredient tested reflected the make-up of the advertised product itself. It was also unclear whether the inhalation method used reflected that which users of the product would experience. For the reasons given, we considered the claims in the current ad had also not been substantiated and we therefore concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The ad must not appear again in its current form. We told Nicocigs to ensure they did not claim products were not harmful, or were "safer" or "healthier" than smoking, in future in the absence of adequate evidence.
