Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
The home page of the e-cigarettes website www.safercigs.co.uk, seen in June 2017, stated “Dr Salt E-liquids. Changing the way you vape one tank at a time” in a cartoon font. This was accompanied by a cartoon image of a man in a white coat with a stethoscope.
Issue
1. A member of the public challenged the claim “Dr Salt E-liquids” and the cartoon image of the doctor on the marketer’s website, where only factual rather than promotional content was permitted for unlicensed nicotine-containing e-liquids.
The ASA challenged whether:
2. the claim “Changing the way you vape one tank at a time” was a promotional claim, and therefore in breach of the Code; and
3. the name “Safercigs” was a promotional claim, and therefore in breach of the Code.
Response
1. Safercigs Ltd said that they would remove the image of the doctor from the logo and replace it with the chemical symbol for salt-based nicotine.
2. Safercigs said they believed that “Changing the way you vape one tank at a time” was a factual claim. They said that there were two types of nicotine available in e-liquids, free base and salt base. Free-based nicotine had been the standard for over ten years but was harsh on the throat and took longer to be absorbed by the body and provide a nicotine hit. Safercigs said this resulted in many new vapers returning to smoking tobacco. Salt-based nicotine used a different method to extract nicotine from tobacco leaves, resulting in a smoother throat hit and quicker absorption of nicotine into the body, similar to smoking a tobacco cigarette. They stated that feedback they received from customers, retailers, wholesalers and reviewers indicated that using salt-based e-liquids did change the way people vaped. They therefore believed that the claim was factual and did not breach the Code.
3. Safercigs said their business was established in 2011, prior to the current regulations on e-cigarettes being put into place. They stated that “Safercigs” was just the name of the company, and they had never used it to promote their business because the reputation for quality and customer care they had built up did that automatically. They also referred to a Public Health England press release stating that e-cigarettes were estimated to be 95% less harmful than tobacco, which they said indicated that e-cigarettes were “safer”. However, Safercigs stated that they had never used that claim to promote their products, in compliance with the Tobacco and Related Products Regulations 2016 (TRPR).
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 stated that such advertisements were not permitted in online media, but that, consistent with the law, some 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
The ASA noted Safercigs’ assurance that they would remove the image of the doctor from the ad. Nonetheless, we assessed whether the claim and image were likely to be understood as promotional in nature.
The name “Dr Salt E-liquids” appeared in bold, stylised font. We considered that the name, as well as the image of a character who appeared to be a doctor, were likely to be understood as a making claims about the health benefits of the product. We also noted that the image was not related to the product. Overall, we considered that the nature of the claim and image, and their presentation, went beyond factually describing the product or its features. We concluded that the claim and accompanying image were promotional in nature and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22. 12 (E-cigarettes).
2. Upheld
We noted Safercig’s assertion that vaping with salt-based e-liquids resulted in a less harsh effect on the throat and a more quickly absorbed nicotine “hit”, when compared to free-based e-liquids. However, we considered that the claim “changing the way you vape one tank at a time” did not in itself provide factual information on those, or any other, specific characteristics of the product. We also noted that it was presented in a stylised font. We concluded that the claim, and its presentation, went beyond factually describing the product or its features, and was therefore promotional. We concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22. 12 (E-cigarettes).
3. Upheld
We considered that the claim “Safercigs” was likely to be understood as making a claim about the relative health benefits of the advertiser’s products compared to tobacco cigarettes. We therefore considered that the claim went beyond factually describing the products or their features, and had the effect of promoting their e-cigarette products as an alternative to tobacco cigarettes. We concluded that the claim “Safercigs” was promotional in nature and therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22. 12 (E-cigarettes).
Action
The ad must not appear again in the form complained of. We told Safercigs Ltd, that when advertising their nicotine-based e-cigarette products on their website, not to use cartoon imagery or other significant unrelated imagery. We also told them to remove health claims such as their name “Safercigs” and the claim “Dr Salt e-liquids”, and to remove the claim “changing the way you vape one tank at a time” from their website.
