Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
The website and a YouTube ad for Vype e-cigarettes seen on 27 June 2019:
a. The website www.govype.com, made claims relating to various e-cigarette products. On the product pages, text stated, “a mix of golden tobacco notes with a hint of caramel”; “the aroma of rum, blended with notes of vanilla and a hint of spice”; “A blend of roasted tobacco with a nutty cream finish”; “A Burley-style dark tobacco blend, complemented with caramel, cocoa and roasted coffee notes”; “A lightly smoked whisky inspired flavour with vanilla nuances”; “Honeydew delivers an authentic honeydew melon flavour”; “Peach is blend of white peach with a hint of floral notes”; “Subscribe & Save”; “Why not sign up to have your refills delivered regularly and save?”; “intense taste”; and “rich vapour”. On a web page entitled "Introducing House of Holland x Vype” claims stated, “Following a collaboration with Vype, Henry’s fashion label House of Holland has created a collection of five Vype x House of Holland Limited Edition designs for the Vype ePen 3” and “Fashion designer (and vaper) Henry Holland”, and featured an image of Henry Holland. Another page stated, “Henry Holland talks Vaping and Fashion” and featured a video of Henry Holland.
b. A YouTube video for Vype Electronic Cigarettes was entitled “Henry Holland Reviews the ePen 3 skins he designed for Vype - Vype UK 2018” and featured Henry Holland presenting the background and nature of his collaboration with Vype.
Issue
Johnson & Johnson Ltd challenged whether the following claims about the Vype electronic cigarette product had the effect of promoting nicotine-containing e-cigarettes and their components online, and were therefore in breach of the Code:
1. “[A] mix of golden tobacco notes with a hint of caramel”; “the aroma of rum, blended with notes of vanilla and a hint of spice”; “A blend of roasted tobacco with a nutty cream finish”; “A Burley-style dark tobacco blend, complemented with caramel, cocoa and roasted coffee notes”; “A lightly smoked whisky inspired flavour with vanilla nuances”; “Honeydew delivers an authentic honeydew melon flavour”; “Peach is blend of white peach with a hint of floral notes”; rich vapour”; and “intense taste”.
2. “Subscribe & Save” and “Why not sign up to have your refills delivered regularly and save?”..
3. The collaboration with Henry Holland.
Response
1. & 2. Nicoventures Retail (UK) Ltd t/a Vype believed the claims on their product pages were factual flavour and/or ingredient descriptions using recognised flavour descriptors that enabled consumers to make a purchasing decision. Vype stated words such as ‘notes’, ‘hints’, aroma’, ‘blend’, ‘floral’, ‘inspired’ and ‘nuances’ were commonly used for other aromatic consumer goods, such as coffee, tonic water, alcohol and perfume. They stated that those words provided accurate and factual descriptions about the product, so that consumers could identify the most suitable product for them. As e-liquid often contained more than two flavours or ingredients, it was important to provide an indication of the degree, scale and depth of the flavour, taste, smell, ingredients and characteristics the user would experience in each case.
They added that such descriptions were needed to provide complete information about the product and allow consumers to make an informed purchasing decision. They added that the descriptions typically consisted of between six and ten words. Vype said consumers accessed their website, where the claims appeared, to find detailed information about their products. The flavour description was more likely to help a consumer buy a product more suited to their specific needs, rather than make a purchase they would not otherwise have made. They considered their customer base ‒ adult smokers or former smokers of tobacco products ‒ were selective and paid a higher degree of attention to their products than the average consumer.
Vype had commissioned a report by a leading food scientist with experience in food law and food labelling who provided his view of the terms and stated that, when describing flavours, it was common practice to describe both qualitative aspects (the nature of the flavour, by characterising ingredients) and quantitative aspects (the relative strength – e.g., ‘hint’, ‘trace’ or ‘blend’ for low level ingredients). He stated that the following terms were commonly used for other aromatic consumer goods: notes, hints, aroma, blend, floral and nuances. He provided examples of the terms used in relation to foodstuffs. Vype stated they had removed the claims “rich vapour”, “intense taste”, “subscribe and save” and “why not sign up to have your refills delivered regularly and save”.
3. Vype did not consider the blog post and collaboration to be promotional in nature. They stated the purpose of the collaboration with Henry Holland was to design a product to meet their customers’ particular needs, particularly in terms of that product’s appearance. They believed the blog post provided objective, factual and product-focused information for those actively seeking information about the Henry Holland-designed products. They stated the information was only accessible once users had confirmed they were over 18 and had actively sought the information. They stated they had nonetheless removed the Henry Holland video.
Assessment
The ASA understood that rule 22 .12 of the CAP Code 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 required that only factual claims about unlicensed nicotine-containing e-cigarettes were permitted on marketer’s own websites, meaning that claims which were promotional in nature were prohibited.
1. Upheld
Given the particular legal requirements relating to the advertising of unlicensed nicotine-containing e-cigarettes, we did not consider that conventions established in food labelling were a relevant context for determining what constituted a promotional or factual claim in relation to e-liquids. We understood that the claims under point 1 were intended to provide information about the e-liquids’ flavours. While we considered that it was acceptable for marketers to include simple descriptions of product flavours, we considered that many of the words and phrases included in the product listings went further than simple factual claims and constituted descriptive, promotional language. Because the website featured promotional claims for unlicensed nicotine-containing e-liquids, we concluded that it therefore breached the CAP Code.
On that point, the claims breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
2. Upheld
The claims “Subscribe & Save” appeared prominently on the product listing pages of the Nicoventures website, above the claim “Why not sign up to have your refills delivered regularly and save?” and a link to take up the subscription. We considered that they were savings claims which were presented as more than just factual pricing information, and were instead presented as an incentive to purchase the advertised products and served to make the purchase of the products appear more attractive. As such, we concluded that the claims were promotional rather than factual in nature, and in breach of the Code.
On that point, the claims breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
3. Upheld
We considered Henry Holland was a well-known fashion designer with a celebrity status and established following. We acknowledged that the blog post was intended as a report of Henry Holland’s runway show, but noted it featured Henry Holland vaping and highlighted the e-cigarette accessories he had designed in collaboration with Vype. We noted the YouTube video also featured Henry Holland promoting Vype e-cigarette accessories, commenting, for example, on how the colours used related to Vype e-cigarette flavours and featuring the e-cigarette cases he had designed. We therefore considered the ads promoted e-cigarettes and because the use of a collaboration with a fashion designer with celebrity status was promotional rather than factual in nature, we concluded it was in breach of the Code.
On that point, the promotion breached CAP Code (Edition 12) rule 22 .12 (Electronic cigarettes).
Action
The website must not appear again in its current form. We told Nicoventures Retail (UK) Ltd t/a Vype to remove the claims found to be in breach of the Code and to ensure that they did not use promotional claims for unlicensed nicotine-containing e-cigarettes or e-liquids on their website.
