Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
A website, www.no1ejuice.com, seen on 30 June and 20 October 2017 selling electronic cigarettes and liquids. On 30 June the website featured a hovering box with text that stated, “Our Loyalty Point Powered by S Loyalty Log in”. On 20 October the website featured text that stated, “Sale!”, “HUGE %” and showed an image of an arrow facing downwards. Further text stated, “CLEARANCE SAVE NOW SALE!”, and below that was an image of a product with the text “Lux Mod + Just Jam Bundle Pack £79.94 [strikethrough price] £64.95 …”.
Issue
1. The Electronic Cigarette Industry Trade Association (ECITA), who understood that only factual content was permitted on marketers’ own websites for unlicensed nicotine containing e-cigarettes and their components, challenged whether the claim "Our Loyalty Point Powered by S Loyalty Log in” was a promotional claim and therefore in breach of the CAP Code.
Brent and Harrow Trading Standards Service challenged whether the following claims were promotional claims and therefore in breach of the CAP Code:
2. “HUGE % CLEARANCE” along with the image of an arrow facing downwards, “SAVE NOW”, “SALE!”; and
3. “£79.94 [strikethrough price] £64.95”.
Response
1., 2. & 3. Thinking Plus Ltd t/a No. 1 Ejuice stated that they had now removed their rewards scheme. Furthermore, any unpermitted banners featuring nicotine containing ecigarettes/e-liquids had now been taken down from their website.
No 1 Ejuice stated that they would now carry out checks in future before an ad featuring nicotine containing e-cigarettes/e-liquids went live on their website
Assessment
1. Upheld
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 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. We understood that No. 1 Ejuice’s “Loyalty Point” was a reward scheme that provided consumers with points upon purchasing nicotine containing e-cigarettes and e-liquids, which they could spend on the www.no1ejuice.com website. We considered that this went beyond factually describing the product or its features, and was instead presented as an incentive to purchasing the advertised products.
Because of that, we considered that the claim was promotional rather than factual in nature and therefore concluded that it breached the CAP Code.
On this point the claim breached CAP Code (Edition 12) rule 22.1 2 (Electronic cigarettes).
2. Upheld
We noted that “The HUGE % CLEARANCE” along with the image of an arrow facing downwards, “SAVE NOW”, “SALE!” appeared prominently on the www.no1ejuice.com website as headline claims in a turquoise banner. They were presented in a stylistic manner along with the use of graphical content that resembled puffs of smoke and images of e-liquid bottles. We considered that the claims 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 products appear more attractive. As such, we concluded that the claims were promotional rather than factual in nature and therefore breached the CAP Code.
On this point the claims breached CAP Code (Edition 12) rule 22. 12 (Electronic cigarettes).
3. Upheld
We acknowledged that the claim “£79.94 [strikethrough price] £64.95” provided information regarding the price-cut for the product. However, we considered that the strikethrough price served to make the current price of the product appear more attractive to consumers. Furthermore, the claim was presented in a turquoise colour and in bold font, whereas the product description that preceded it – “Lux Mod + Just Jam Bundle Pack” – was black and not in a bold format. We considered that the claim was presented as more than just factual pricing information, and was instead presented as an incentive to purchasing the advertised products.
Because of that, we concluded that the claim was promotional rather than factual in nature and therefore breached the CAP Code.
On this point the claim breached CAP Code (Edition 12) rule 22. 12 (Electronic cigarettes).
Action
The ad must not appear again in its current form. We welcomed the changes No. 1 Ejuice had already made to their website, and reminded them that when advertising unlicensed nicotine-containing e-cigarettes on their own website, not to present information about pricing offers in a manner that went beyond the provision of factual information, particularly by using strikethrough prices, claims such as “huge clearance, “save now” and “sale”, and stylised unrelated imagery and formatting.
