Background
On 12 June 2013 the Medicines and Healthcare Products Regulatory Agency (MHRA) announced that, following a public consultation on how to regulate nicotine-containing products (NCPs) such as electronic cigarettes (e-cigarettes), all NCPs were to be regulated as medicines. The UK government will press for EU law to create a Europe-wide legal position on NCPs as medicines. The European Commission has said it expects the new legislation to be adopted in 2013 and for it to come into effect in the UK from 2016, at which point NCPs will require a medicine licence. Until that time, e-cigarettes, which make no medicinal claims, will continue to be regulated as consumer products in the UK.
The following adjudication relates to an ad broadcast prior to the MHRA's announcement of June 2013.
Ad description
A website, www.nicolitesonline.co.uk, for Nicolite Electronic Cigarettes, featured three rotating images at the top of the "Benefits" page. One of the images showed woman holding a cigarette and a glass. Text beside the image stated "2. Cheaper Than Traditional Cigarettes. Electronic Cigarettes work out to be up to three times cheaper than traditional cigarettes".
Beneath the image was the heading "The Benefits of Nicolite Electronic Cigarettes", which listed a number of "benefits". The final paragraph was titled "Less Expensive than Conventional Cigarettes" and displayed text that stated "Nicolite can be significantly less expensive that [sic] tobacco cigarettes. Once you've bought the starter kit, all that needs replacing is the cartomiser that contains liquid nicotine. A cartridge is equivalent to about twenty tobacco cigarettes. If you smoke five cigarettes a day, you stand to save nearly £400 per year if you switch to Nicolite. If you smoke twenty cigarettes a day, the saving would be about £1500 per year. With all these benefits to recommend them, aren't Nicolite e-cigs worth a try?".
Beneath that appeared a table, which displayed figures of the savings consumers could achieve if they replaced conventional cigarettes with Nicolite Electronic Cigarettes. The table showed that a person who smoked 20 cigarettes a day would spend £2,372.52 a year on 'ordinary' cigarettes or £845.60 on Nicolite Electronic Cigarettes, which represented a yearly saving of £1,526.92.
Issue
The complainant challenged whether the claim "A cartridge is equivalent to about twenty tobacco cigarettes" was misleading and could be substantiated.
Response
Nicocigs Ltd (Nicocigs) explained that, following receipt of the complaint, the manufacturer tested the product to ascertain how long a cartomiser lasted. They said the test showed each cartomiser lasted for a minimum of 257 inhalations; an inhalation lasting two seconds. They approximated that a traditional cigarette lasted for between 10 and 12, two-second inhalations, but provided no evidence to support that. They said based on those figures, each cartomiser lasted for at least 20 cigarettes. They acknowledged that an approximation of 10 to 12, two-second inhalations per traditional cigarette might not be representative of the usage of every smoker.
Nicocigs said the savings claim was based on a packet of traditional cigarettes costing £6.50. They believed that was the average cost for major brands of traditional cigarettes, but provided no evidence to support that.
Assessment
Upheld
The ASA noted the test was conducted after the complaint had been received and, we therefore considered the test was inadmissible to support the claim at the time the ad appeared.
Notwithstanding that, we were concerned that the test report did not include a detailed methodology and therefore did not allow us to assess the robustness of the test. We were also concerned that we had seen no evidence that a traditional cigarette lasted for between 10 and 12, two-second inhalations, or that an average packet of traditional cigarettes cost £6.50.
The claim "A cartridge is equivalent to about twenty tobacco cigarettes" appeared beside the claim "all that needs replacing is the cartomiser that contains liquid nicotine". In that context, we considered consumers would understand the claim to mean that the cartomiser would provide a level of nicotine equivalent to 20 traditional cigarettes.
We were therefore concerned that we had not seen sufficient evidence to substantiate the claim that "A cartridge is equivalent to about twenty tobacco cigarettes". On that basis, we concluded that the claim had not been substantiated and breached the Code.
On this point, the ad breached CAP Code rule 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation).
Action
The ad must not appear again in its current form. We told Nicocigs to ensure claims were capable of robust substantiation in future.
