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 Juicemate, www.juicemate.co.uk, an electronic cigarette brand seen on 17 January 2024 featured a page titled “Vape Affiliate Program”. Text under the heading stated, “Click here to join our affiliate program!” with linked text. Further text below stated, “[…] Earn a healthy, rewarding commission for every sale you deliver and form a partnership with a company that cares. So if you have a blog, or want to set up a dedicated affiliate website promoting vaping products, be sure to join our affiliate program. WHAT IS A VAPE AFFILIATE PROGRAM? Vaping affiliate programmes are offered […] to individuals who want to sell and promote our vaping products in return for a commission. It uses the principle of affiliate marketing, where affiliates (also known as publishers) promote a company's products through various online channels and earn a commission for each sale or lead they generate. HOW DOES YOUR AFFILIATE PROGRAM WORK? […] Juicemate will supply you (the affiliate) with unique referral links or discount codes. You can then share these with your audiences, whether you have a big following on your website, blog, social media platforms or via email marketing.”
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
Pixus Online Ltd t/a Juicemate said they were not aware that there was an issue with an affiliate programme as they had seen them on other vaping websites. They removed the affiliate webpage on receiving notification of the ASA investigation.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, which 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, YouTube, Discord and TikTok in breach of CAP Code rule 22.12.
The ad was not for specific named electronic-cigarette or vaping products, and as such we considered it did not have the direct effect of promoting unlicensed nicotine-containing e-cigarettes. The ASA therefore assessed whether the ad had the indirect effect of promoting such products.
The Juicemate Vape Affiliate Program webpage featured linked text that people could click to enter their details and receive a unique referral link and discount codes. The page detailed the benefits of becoming an affiliate, which included a 20 per cent commission based on the total order placed with Juicemate using the affiliate link or discount code. It stated, “You can then share these with your audiences, whether you have a big following on your website, blog, social media platforms or via email marketing”. The page also listed the names of vape brands whose products affiliates could choose to promote.
We considered the ad encouraged people to become Juicemate Affiliates, who in turn would promote the sale of e-cigarettes and their components on the advertiser’s behalf on social media, and consequently the restriction that applied to online media under rule 22.12 was applicable. We therefore 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, by means of the affiliate programme. We further considered that by encouraging people to promote the sale of such products on social media, the ad incited prospective affiliates to breach the Code and the legislative ban contained in the TRPR.
Because the ad had the indirect effect of promoting e-cigarettes, which were not licensed as medicines in non-permitted media, and irresponsibly incited people to break the law, we concluded that it 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 Pixus Online Ltd t/a Juicemate 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.
