Background
Summary of Council decision:
Twenty issues were investigated, 17 of which were Upheld. A number of other claims were informally resolved after the advertiser agreed to remove them.
Ad description
The website for Vype e-cigarettes www.govype.com, was seen on 2 January 2018.
Throughout the website were claims relating to various e-cig products: “delivering rich vapour at the click of a button”; “The eLiquid inside our flavour Caps is made in the UK with quality ingredients, to give you a smooth, satisfying vape”; “Mix and Match across our e-Liquid range. Mix and Match prices are applied at checkout when you add 6 or more Vype refills to your basket”; “Taste you can trust”; “Vype Pebble Cartridges Tingling Mint Combination of refreshing mint and vanilla notes with a cooling finish”; “Vype Fruit Collection Discover the juicy Fruit Collection”; “Vype Dessert Range … Tested by scientists for a vape you can trust”; “Vype Smoothie Collection Mix things up with our Smoothie Collection eLiquids. Blends combining our familiar fruity flavours with sweet and creamy notes”; “Vype Cool Collection ePen Cartridges Green Snap … A fresh surge of minty juice and refreshing flavours, the Green Snap flavoured ePen Cartridges are a cool and refreshing new flavour …”; “CARAMEL MARSHMALLOW PREMIUM DESSERT RANGE”; “COCONUT PANNA COTTA PREMIUM DESSERT RANGE A … infusion of a toasted … coconut”; “Vype eLiquid Apple Custard”; “Vype ePen Cartridges Indigo Dive … the Indigo Dive ePen cartridges have a unique flavour”; “Vype ePen Cartridges Scarlet Kick … The fresh menthol tones and fruity notes give a unique flavour”; “Vype ePen Cartridges Strawberry Smash”; “Vype ePen Cartridges Peach Swirl … the Peach Swirl ePen cartridge … Available in three different nicotine strengths for a smooth and refreshing vape”; and “Vype ePen Cartridges Honeydew Splash A fresh … vape … tasting just like a … juicy … melon … the Honeydew Splash ePen cartridge is available in three different nicotine strengths and can be enjoyed alone for a rich and … smooth vape”.
Issue
Johnson & Johnson Ltd, who understood that only factual content was permitted on marketers’ own websites for unlicensed nicotine containing e-cigarettes and their components, challenged whether the following claims were promotional claims, and therefore in breach of the Code:
1. “Tested by scientists”.
2. “Vype Pebble Cartridges Tingling Mint Combination of refreshing mint and vanilla notes with a cooling finish”.
3. “Vype Fruit Collection Discover the juicy Fruit Collection”.
4. “Vype Dessert Range”.
5. “Vype Smoothie Collection Mix things up with our Smoothie Collection eLiquids. Blends combining our familiar fruity flavours with sweet and creamy notes”.
6. “Vype Cool Collection ePen Cartridges Green Snap A fresh surge of minty juice and refreshing flavours, the Green Snap flavoured ePen Cartridges are a cool and refreshing new flavour”.
7. “CARAMEL MARSHMALLOW PREMIUM DESSERT RANGE”.
8. “COCONUT PANNA COTTA PREMIUM DESSERT RANGE A … infusion of a toasted … coconut …”.
9. “Vype eLiquid Apple Custard”.
10. “Vype ePen Cartridges Indigo Dive … the Indigo Dive ePen cartridges have a unique flavour”.
11. “Vype ePen Cartridges Scarlet Kick … The fresh menthol tones and fruity notes give a unique flavour”.
12. “Vype ePen Cartridges Strawberry Smash”.
13. “Vype ePen Cartridges Peach Swirl … the Peach Swirl ePen cartridge … Available in three different nicotine strengths for a smooth and refreshing vape”.
14. “Vype ePen Cartridges Honeydew Splash A fresh … vape … tasting just like a … juicy … melon …”.
15. “the Honeydew Splash ePen cartridge is available in three different nicotine strengths and can be enjoyed alone for a rich and … and smooth vape”.
16. “delivering rich vapour at the click of a button”.
17. “The eLiquid inside our flavour Caps is made in the UK with quality ingredients, to give you a smooth, satisfying vape”.
18. “Mix and Match across our e-Liquid range. Mix and Match prices are applied at checkout when you add 6 or more Vype refills to your basket”.
19. “Taste you can trust”.
20. “a vape you can trust”.
Response
1. – 17. Nicoventures Trading Ltd t/a Vype stated that when describing the flavours of their e-liquids they struck a balance between providing consumers with the information they needed to make an informed choice (i.e. by allowing them to distinguish between the vast number of different flavours available on the market) and using language that could be deemed promotional.
Vype stated that all the claims were factual descriptions of different flavoured e-liquids that they offered to consumers rather than being promotional in nature.
Vype stated that the claim “The eLiquid inside our flavour Caps is made in the UK with quality ingredients, to give you a smooth, satisfying vape” was an objective factual claim. They stated that manufacturing and ingredient standards were not consistent across the e-cigarette industry, and that they used pharmaceutical grade ingredients made in the UK that were tested by scientists, and along with their manufacturing processes were always of high quality.
18. Vype stated that the claim “Mix and Match across our e-Liquid range. Mix and Match prices are applied at checkout when you add 6 or more Vype refills to your basket” provided consumers with factual pricing information and was not communicated in a promotional manner.
19. & 20. Vype stated that the claims “Taste you can trust” and “a vape you can trust” were intended to be objective factual claims which related to the high quality ingredients and manufacturing processes they used, which they had already detailed.
Vype stated that they would make amendments to their website so that the “trust” claims would always appear in association with explanatory information regarding the: quality of their products’ ingredients; amount of research and scientific testing involved in their products’ development; and the manufacturing standards they used. They considered that such amendments would clarify that the claims were objective and factual in nature.
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. and 9. Not upheld
We considered that the claim “Tested by scientists” provided consumers with basic information regarding the e-cigarette’s product development. Similarly we considered that the claim “Vype eliquid Apple Custard” was a straightforward statement about the flavour of that product. We concluded those claims were factual rather than promotional in nature, and complied with the Code.
On those points, we investigated the website under CAP Code (Edition 12) rule 22 .12, but did not find it in breach.
2. – 8. & 10. – 17. Upheld
We understood that the claims 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.
Specifically we considered that the following claims and parts of claims were promotional in nature and in breach of the Code: “juicy” (3); “Dessert Range” (4); “Mix things up with our Smoothie Collection eLiquids. Blends combining our familiar fruity flavours with sweet and creamy notes” (5); “Green Snap A fresh surge of minty juice and refreshing flavours, the Green Snap flavoured ePen Cartridges are a cool and refreshing new flavour” (6); “DESSERT RANGE A … infusion of a toasted … coconut” (8); “Indigo Dive … the Indigo Dive ePen cartridges have a unique flavour” (10); “Scarlet Kick … The fresh menthol tones and fruity notes give a unique flavour” (11); Strawberry Smash (12), Peach Swirl … for a smooth and refreshing vape” (13); “Honeydew Splash A fresh … vape … tasting just like a … juicy …melon …” (14); “the Honeydew Splash ePen cartridge …and can be enjoyed alone for a rich and … and smooth vape” (15); “delivering rich vapour at the click of a button” (16); and “to give you a smooth, satisfying vape” (17).
On those points the website breached CAP Code (Edition 12) rule 22 .12..
18. Not upheld
We considered that the claim “Mix and Match across our e-Liquid range. Mix and Match prices are applied at checkout when you add 6 or more Vype refills to your basket” provided basic pricing information for consumers. We concluded that the claim was factual rather than promotional in nature.
On that point, we investigated the website under CAP Code (Edition 12) rule 22 .12 but did not find it in breach.
19. & 20. Upheld
We noted that Vype intended to continue using the claims “Taste you can trust” and “for a vape you can trust”, but would include additional text to inform consumers that the claims reflected the quality of their products’ ingredients, the amount of research and development they underwent and the manufacturing standards that were used.
However, we considered that references to the term “trust” did not factually describe the product or its features, and served to make the product appear more attractive to consumers, and was therefore promotional in nature.
Because the website featured promotional claims for unlicensed nicotine-containing e-liquids, we concluded that it therefore breached the CAP Code.
On those points the website breached CAP Code (Edition 12) rule 22 .12 (Electronic cigarettes).
Action
The website must not appear again in its current form. We told Nicoventures Trading Ltd 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.
