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ASA Adjudication on Zandera Ltd

Zandera Ltd

18 Buntsford Hill Business Park
Bromsgrove
Worcestershire
B60 3DX

Date:

25 September 2013

Media:

Radio, Internet (display), Internet (on own site), Television

Sector:

Leisure

Number of complaints:

65

Agency:

McCann-Erickson Advertising Ltd

Complaint Ref:

A13-219706

Background

Summary of Council decision:

Eight issues were investigated, of which two were Upheld and six were Not upheld.

Ad

A radio ad, a TV ad, an internet banner ad, a poster at a bus-stop and a display ad on the side of a bus, for electronic cigarettes:

a. The radio ad featured three scenes of vital moments: a wedding; an award ceremony; and the birth of a child. In each scene a key participant was obviously missing and someone asked "Where's Dave?". A voice-over then stated, "What are you missing when you pop out for a cigarette? By switching to E-Lites you can legally smoke indoors with no tobacco, no smell and around seventy per cent less cost. Find E-Lites in store or at e-lites.co.uk. E-Lites, smoking reinvented."

b. The TV ad showed a family gathering in which a number of adults were admiring an infant child. One of the men then got up, tapped his shirt pocket, nodded to the woman holding the baby and left the room. The baby then began to toddle towards one of the other women, but stopped in the middle of the room and performed several dance moves from the music video for the song Gangnam Style, before sitting down. The man who had left the room then returned, clapped his hands and said, "So, what have I missed?" while the other adults were shown frozen with shock. On-screen text stated "E-Lites What are you missing? E-Lites.co.uk".

c. The internet banner ad had text which stated "NO TAR NO TOBACCO 70% CHEAPER 100% LEGAL" and had a picture of an e-cigarette. The image then changed to show two product packages alongside the text "THE SATISFYING SMOKING ALTERNATIVE LEARN MORE". At the bottom of the ad was the product logo and the text "E-Lites UK'S BEST ELECTRONIC CIGARETTE".

d. The poster ad at the bus-stop stated "WHAT ARE YOU MISSING? No tar. No tobacco. No odour". It showed an open packet of E-Lites with the two separate parts of an individual electronic cigarette lying next to it.

e. The poster on the bus showed an open product pack next to text which stated "WHAT ARE YOU MISSING? No tar, no tobacco and legal indoors. E-Lites SMOKING REINVENTED".

Issue

The ASA received 65 complaints; one from Smokefree South West and 64 from members of the public.

1. Nine complainants challenged whether ad (a) was irresponsible and harmful, because they believed it promoted a nicotine-based product and encouraged and normalised tobacco smoking.

2. One complainant challenged whether ad (a), and three complainants challenged whether ad (b), were misleading, because they omitted material information about the product, specifically its ingredients and that it contained nicotine.

3. One complainant challenged whether the claim "legally smoke indoors" in ad (a) was misleading because the product was neither smoked nor was it the same as a cigarette.

4. Two complainants challenged whether ad (a) was offensive because it promoted smoking equipment (E-Lites); one of whom objected particularly to the suggestion that one of the characters could have used the product in a maternity ward.

5. Smokefree South West and 41 other complainants who believed that ad (b) promoted a nicotine-based product and encouraged and normalised smoking or the use of E-Lites, challenged whether the ad was irresponsible and therefore harmful.

6. Three complainants, who believed that ad (b) would be of particular interest to children breached the Code by referring to smoking.

7. Five complainants challenged whether ad (b) was offensive because it used a baby to promote a smoking-related product.

8. A complainant, who believed that ad (c) encouraged smoking and the use of E-Lites, and another complainant who believed the same of ads (d) and (e), challenged whether the ads were irresponsible.

CAP Code (Edition 12)

BCAP Code

Response

1. The Radio Advertising Clearance Centre (RACC) believed the ad targeted existing smokers by informing them that E-Lites, a product legally allowed to be advertised on radio, could be used indoors, lacked odour and was cheaper in price than traditional cigarettes. They did not believe that it promoted nicotine, which was not mentioned in the ad, nor encouraged or normalised traditional smoking; instead the claims "By switching to E-Lites" and "smoking reinvented" implied the opposite to smokers.

The RACC believed the ad was unlikely to encourage non-smokers to start using the product, or that the product itself might be seen as a "gateway" to traditional cigarette smoking for non-smokers or former smokers. They said the ad did not normalise the act of traditional smoking, but offered an acceptable alternative to tobacco smoking, presented in an acceptable, factual and responsible way. They also believed that BCAP Code rule 10.4 did not apply to E-Lites, because the product was sufficiently distinct from tobacco products so as not to be comparable for the purposes of that rule and was presented as a smoking alternative. They believed listeners would be aware of the distinct difference between the features of electronic cigarettes and traditional cigarettes and would not be associated in the audience's mind with a tobacco product.

Zandera endorsed the RACC's response on this point.

2. Zandera said there were no legal or best practice guideline requirements to display product ingredients in the ads themselves, but the TV ad (b) did show a website address where further information could be found on the product and its ingredients.

The RACC said they did not feel that the radio ad (a) needed to include either the product's ingredients or that it contained nicotine. They said E-Lites were also available without nicotine.

Clearcast said BCAP Code rule 10.4 stated that a non-tobacco product may be advertised with certain conditions and those conditions strictly prohibited E-Lites' features and ingredients to be included in the TV ad (b) as to do so would associate the product in the audience's mind with a tobacco product. They said the ad was simply intended to raise awareness of the E-Lites brand name and availability. To go further and feature the product or ingredients would, in their view, have breached the Code.

However, although avoiding any reference to smoking or tobacco, Clearcast believed the ad was prepared with due regard to the Code. They said the name of the brand being advertised was clear and therefore unlikely to mislead viewers about the product.

3. The RACC believed that the radio ad targeted existing smokers with an alternative product to traditional smoking that could be used indoors legally. They explained that electronic products superheated a fluid into a vapour, whereas traditional cigarettes dealt with the burning and inhalation of tobacco products. The RACC believed listeners would understand the difference between 'smoking' a traditional cigarette and 'vaping' an E-Lite and would make no material difference to them.

Zandera endorsed the RACC's response on this point.

4. The RACC said the ad promoted a vaping product and therefore did not promote "smoking equipment". The premise of the ad was that the husband character could be closer at hand on certain occasions. In this particular scenario he could be in the waiting area of the hospital or outside of the hospital altogether, although it would be feasible for an E-lite to be used in a maternity ward.

The RACC also believed that BCAP Code rule 10.4 had not been breached and was not relevant to the investigation as E-Lites were sufficiently distinct from tobacco products so as not to be comparable for the purposes of the rule. They believed that the average consumer would recognise that E-Lites were an alternative product, not a comparative one.

Zandera endorsed the RACC's response on this point.

5. Zandera said the TV ad (b) did not directly reference nicotine-based products, show the electronic cigarette product or claim any benefits, nor did it directly depict smoking. They believed the ad did not normalise the act of smoking and was not in any way irresponsible or harmful.

Clearcast said great care and consideration was taken when approving the ad, as electronic cigarette advertising was extremely new to the UK. They said the Code banned the advertising of all tobacco products, but e-cigarettes, although a nicotine product, was not a tobacco product. They pointed out that e-cigarettes were not mentioned in the Code and therefore they considered the product was not prohibited to be advertised.

Clearcast said they were familiar with rule 10.4 and considered that E-Lites did share features with tobacco products in that they were visually strongly reminiscent of cigarettes, both in the actual product and the packaging, which resembled a cigarette packet. In addition, the description of the product as an electronic cigarette would make a direct link with a tobacco product. They therefore considered that to comply with rule 10.4 the ad could not show the product either on its own or in use, contain the words electronic cigarette or e-cigarette, or show any product packaging.

Clearcast said while e-cigarettes might be a controversial product, they were legal and, unlike tobacco cigarettes, had not been proven to be harmful. They considered that they would be going beyond what was laid down in the BCAP code if they were to refuse all advertising for e-cigarettes out of hand on the grounds of social responsibility or harm. There were no scenes of the E-Lites product in use or scenes of any other tobacco product that would imply smoking to be normal or encouraged.

6. Zandera said although the use of a comic 'Gangnam style' dancing baby might have been of interest to some children, the absence of any direct references to smoking or electronic cigarettes meant that children were unable to make any connection between the ad and smoking.

Clearcast stressed that the ad contained no references to smoking and did not believe that the ad would be of particular appeal to children. However, they said, because the product itself could only be sold to persons over the age of 18, they applied an ex-kids restriction to ensure that an adult product would not be scheduled around programming of particular interest to children.

7. Zandera reiterated the care taken with the ad, in particular the use of a dancing baby and how it may be viewed by the general public. They believed the absence of any visual or auditory references to smoking or electronic cigarettes made it very difficult to directly link the depiction of a baby to any aspect of smoking.

Clearcast said they had considered the creative treatment and inclusion of a baby extremely carefully. They pointed out that unlike alcohol and gambling advertising, where persons under the age of 25 must not play a significant role, the BCAP Code made no such prohibitions for non-tobacco products.

They did not believe that the light hearted nature and general appeal of a baby performing a Gangnam Style dance promoted the use or direct purchase of E-Lites, and therefore did not believe the inclusion of the baby to be in poor taste or offensive.

8. Zandera said E-Lites was not a tobacco smoking product. They said the E-Lites internet banner ad (c) explicitly referred to the product as being a "smoking alternative". They believed none of the three ads, (c), (d) and (e), promoted smoking or smoking related activity.

CBS Outdoor said the poster designs were simpler designs from those they first received and as such were accepted by them.

Assessment

The ASA noted electronic cigarettes (e-cigs) are a relatively new product, only recently advertised on TV, and therefore have not been considered before under the BCAP Code. BCAP Code rule 10.4 states that a non-tobacco product or service that shares features with a tobacco product can only be advertised, amongst other reasons, providing the ad makes or implies no reference to smoking or to a tobacco product. In other words, such products need to be advertised responsibly. The rule was drafted in to the Code (previously the ITC Advertising Standards Code) in 2002, based on previously applied policy. The spirit of the rule was intended to prevent depictions of, or references to, tobacco smoking in a positive or promotional light. Code rule 10.4 was not intended to prevent negative depictions or references, which imply that smoking is a bad choice. In applying rule 10.4 to the TV and radio ads in question, Council noted there were references to smoking, but also noted that they were entirely negative.

1. Not upheld

The ASA noted the radio ad (a) featured a key participant missing out on a number of important events in his life as a result of his smoking and the voice-over stated, "What are you missing when you pop out for a cigarette?” and E-Lites were clearly presented as an alternative to tobacco smoking.

We considered that the depiction of smoking was presented as negative and that listeners were unlikely to interpret the ad as encouraging or normalising tobacco smoking; behaviour that would be prejudicial to health. We therefore concluded that the ad did not breach the Code.

On this point, we investigated the radio ad (a) under BCAP rules 1.2 (Social Responsibility), 10.4 (Tobacco prohibited categories) and 4.4 (Harm and Offence), but did not find it in breach.

2. Upheld

We noted Clearcast's reasoning that if ad (b) had included the product's features or ingredients it was likely to have breached BCAP Code rule 10.4. However, we noted the rule 10.4 only required that ads for non-tobacco products, such as e-cigarettes, did not reference or promote smoking or tobacco and did not include a "design, colour, imagery, logo style or the like that might be associated in the audience's mind with a tobacco product". Nonetheless, we considered that the Code did not prevent an ad containing verbal or text references to an 'e-cig', 'e-cigarette', or 'vaporiser', or information indicating that the product contained nicotine providing that it did not also create a link between that product and smoking or tobacco products.

We recognised that e-cigarettes were still a relatively new product in the UK and considered that it was important that such ads made the nature of the product being advertised clear and, whether or not it contained nicotine, was material information that needed to be included in the ads in order to avoid the likelihood of misleading consumers. We therefore concluded that ads (a) and (b) were misleading.

On this point, the radio ad (a) and TV ad (b) breached BCAP Code rules 3.1 and 3.2 (Misleading advertising).

3. Not upheld

We considered that, in the context of an ad for an electronic cigarette, listeners would understand that the claim "legally smoke indoors" to mean that the advertised product could be used indoors in many places where a tobacco product could not legally be smoked. We considered that they were unlikely to interpret it as a claim that the product was literally the same, or used in exactly the same way, as a tobacco product. We therefore concluded that ad (a) was not misleading on this point.

On this point, we investigated the radio ad (a) under BCAP Code rules 3.1 (Misleading advertising), but did not find it in breach.

4. Not upheld

As explained in point 1 above, we considered that the radio ad (a) did not encourage or normalise tobacco smoking. We acknowledged that some listeners might find the references to smoking equipment (E-Lites) distasteful because of the association with tobacco products. However, because it was clear from the ad that E-Lites was an alternative to tobacco products, we considered that it was unlikely to cause serious or widespread offence.

We noted one of the scenarios in the ad featured the birth of a child and a suggestion that the product could theoretically be used in a maternity ward, although we understood this would be unlikely. We also noted, in order to establish for listeners that the man was missing the birth of his child because he was outside smoking a cigarette, a baby was briefly heard crying. We acknowledged general concerns to prevent harm to children from passive smoking, but considered that listeners would understand the light hearted scene as a means simply to illustrate missing an important event, rather than using a child to promote the product. We concluded that on this point the ad was unlikely to cause serious or widespread offence.

On this point, we investigated the radio ad (a) under BCAP Code rules 4.2 (Harm and offence), but did not find it in breach.

5. Not upheld

As already noted above, e-cigarettes could be sold legally in the UK and were not a prohibited category under the BCAP Code, although they should be advertised responsibly.

We acknowledged the care taken with the TV ad (b) to avoid showing the product or referring directly to tobacco smoking. Although viewers would understand the man tapping his shirt pocket and leaving the room implied he was going outside to smoke, we considered that the ad's emphasis was on what had been missed as a result of smoking and that the ad's depiction of tobacco smoking was therefore negative. For that reason, we considered that the ad did not encourage or normalise smoking.

On this point, we investigated the TV ad (b) under BCAP rules 1.2 (Social irresponsibility), 10.4 (Tobacco prohibited categories) and 4.4 (Harm and Offence), but did not find it in breach.

6. Upheld

We noted BCAP Code rule 10.5 required that ads that might be of particular interest to children or teenagers must not refer to tobacco or smoking, unless that reference obviously formed part of an anti-smoking or anti-drugs message. We noted TV ad (b) did not carry that message. We acknowledged that there were no direct references to smoking or tobacco products, but the ad nonetheless referred to smoking by showing the man going outside for a cigarette. Although, as stated in point 5 above, the reference was oblique, rule 10.5 was nonetheless clear on this point, whether or not the portrayal was negative.

We considered that a dancing baby was likely to be very attractive to a broad range of children for whom the baby and the dance moves would both be engaging. We recognised that for younger children the reference to smoking was unlikely to be noticed or understood, but for older children, in particular teenagers, the inference would be clear. We understood that Clearcast applied a restriction to prevent the scheduling of the ad in or adjacent to programmes made for, or principally directed at or likely to appeal particularly to children below the age of 16 years. However, we considered that children were also likely to see the ad at other times of the day and the issue was unlikely to be resolved with a timing restriction.

Because we considered that the content of the ad would be of particular interest to children and also referred to smoking, we concluded that the ad breached the Code.

On this point, the TV ad (b) breached BCAP Code rule 10.5 (Tobacco prohibited categories).

7. Not upheld

We noted the BCAP Code did not contain specific rules on the use of children in ads for non-tobacco products such as e-cigarettes, which we understood were likely to only be sold to over 18-year-olds, but nonetheless considered that such ads should be advertised responsibly.

The TV ad promoted an alternative to tobacco smoking. The reference to smoking was oblique and the practice itself shown in a negative light. Although the baby was the main focus of the ad, he was not involved or a witness to tobacco smoking and we considered that viewers were unlikely to associate the child directly with tobacco smoking. We therefore concluded that the child’s participation in the ad was unlikely to cause serious or widespread offence to viewers.

On this point, we investigated the TV ad (b) under BCAP Code rules 4.2 (Harm and offence), but did not find it in breach.

8. Not upheld

We noted the complainants' concerns about the ads promoting the use of E-Lites. However, nicotine-containing electronic cigarettes could be sold legally in the UK, were not a prohibited category under the CAP Code, and therefore permitted to advertise, within the confines of the CAP Code.

We noted ads (c) and (d) featured images of the e-cigarette and all three ads showed a packet of E-Lites, which looked similar in style and design to a tobacco cigarette packet. However, we also noted text clearly stated "No tar. No tobacco", which disassociated the product from a tobacco product. The banner ad (c) also stated "THE SATISFYING SMOKING ALTERNATIVE", which clarified that the product was another option to tobacco products. We considered that it was clear that all three ads were promoting an alternative to tobacco smoking. We concluded that, because the ads were clearly for a non-tobacco product, they were unlikely to be seen as encouraging or normalising tobacco smoking.

On this point, we investigated the internet ad (c) and posters (d) and (e) under CAP Code (Edition 12) rule 1.3 (Social responsibility), but did not find them in breach.

Action

The radio ad (a) and TV ad (b) must not be broadcast again in their current form. We told Zandera to ensure that their broadcast ads make clear whether or not E-Lites contain nicotine and to ensure that their ads comply with rule 10.5 of the BCAP Code.

No further action necessary on the internet ad (c) and posters (d) and (e).

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