Background
Summary of Council decision:
Three issues were investigated, all of which were Upheld.
Ad description
Claims on a website and the advertiser's Facebook profile page, seen on 17 November 2015, promoted a cannabidiol (CBD) oil vaporiser.
a. Claims on medipen.co [sic] stated, "The World's First All Natural Cannabis Vaporiser". Text at the top of the page stated, "MEDIPEN" alongside a logo which included a green cross symbol.
b. Claims on the advertiser's Facebook page stated, "MediPen ... Health/Beauty" alongside the same logo.
Issue
1. Kana-vape.uk challenged whether the claim “the world’s first all-natural Cannabis Vaporiser” in ad (a) was misleading and could be substantiated.
2. The ASA challenged whether ad (a) was irresponsible by associating cannabis with an e-cigarette; and
3. whether the imagery and name of the product in both ads suggested that the product had medical benefits.
Response
1. Medipen Ltd said that, as far as they were aware, they were the first company in the world to release a CBD vaporiser without the use of synthetic substance propylene glycol, which was commonly used in combination with nicotine in e-cigarette style devices. They said they used organic vegetable glycerin as opposed to propylene glycol as a diluent, which they said immediately distinguished their product from other comparable products. They provided a list of similar products that contained propylene glycol, which included the complainant's product.
They said although there were a few companies on the list that were established in the United States before Medipen, they believed the presence of propylene glycol in other products substantiated the claim that the MediPen was the first all-natural product of its kind.
They said they would be happy to remove the claim if it could be refuted that they were the first company to have produced a CBD vaporiser without using propylene glycol.
2. Medipen said the product was not designed for smokers, there was no combustion involved, it contained no nicotine or additives and it was not marketed as an alternative to smoking. They said they made clear in their press materials that the product was not to be referred to as an e-cigarette, although they used similar hardware.
They said while their CBD oil came from a cannabis extract, CBD was just one of over 85 cannabinoids found in the plant and was not subject to control under the Misuse of Drugs Act. They said CBD did not include any psychoactive effects, nor did it have any effect on physiological parameters such as heart rate or blood pressure, or alter psychomotor or psychological functions. They believed the implication that there was an association with cannabis might have stemmed from a misunderstanding of the content of the product and the legal and regulatory status surrounding certain cannabis constituents.
3. Medipen said CBD was widely used as an aid in mindfulness and meditation, hence the name of the product. They said they expected studies into non-psychoactive cannaboids to become more common, because it was an increasingly popular plant extract found in a diverse range of readily available natural remedy products. They said the product name was a play on 'meditation pen', and was designed to raise awareness of the positive attributes associated with the cannabis plant, as depicted in the logo of the plus sign.
They said they had worked to ensure their product was not presented as a medicinal device. They said disclaimers were included on their website and packaging materials indicating that the product should not be considered a medicinal device or be used to treat or cure any ailments. They said although they were aware of studies on the effects of CBD, as it stood CBD had no medicinal or developmental regulatory status in the UK, and as such, no medicinal claims could be made for it. They said they were unaware of any legislation preventing the use of the plus symbol. They said cannabis was a plant that had been seen to have negative connotations, and they felt that the use of the plus sign was a fitting visual metaphor for what they were trying to achieve.
Assessment
1. Upheld
The ASA considered that consumers would understand from the claim that the product was the first product of its kind in the world with entirely natural ingredients to be offered for sale. We also considered that consumers would expect that no additional technical or manufacturing processes, beyond what was required in order to render them suitable for human consumption, would be used for the ingredients of a product described as “all natural”.
However, Medipen did not provide detailed information about the product’s contents, or how they were sourced or manufactured. The list of some other similar products that contained propylene glycol (which Medipen had obtained from an article discussing propylene glycol on the website of an organisation which promoted research into the use of CBD) was incomplete, and the article also stated that only a limited survey had been carried out. We did not consider that the article constituted evidence demonstrating that the product was the world’s first all-natural product of its kind.
In the absence of adequate evidence to substantiate the claim, we concluded that it was misleading.
On that point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising), 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), and 3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with identifiable competitors).
2. Upheld
We noted that Medipen did not intend the product to be associated with e-cigarettes and that it was not designed for smokers. Nevertheless, for the purposes of the CAP Code, “electronic cigarette” meant a product that was intended for inhalation of vapour via a mouth piece, and the MediPen was therefore covered by the rules on e-cigarettes.
We noted that the product was intended to be used with CBD, which we understood was not a controlled substance, and that Medipen believed a misunderstanding had led to the suggestion that there was a link to cannabis. However, we noted that the phrase “Cannabis Vaporiser” was particularly prominent in the ad and considered that this, as well as the image of cannabis leaves below the claim, created a clear association with cannabis more generally. We considered that linking an e-cigarette to an illegal substance was not socially responsible, and concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22.1 22.1 Marketing communications for e-cigarettes must be socially responsible. (Electronic cigarettes).
3. Upheld
We noted the advertiser’s explanation that “MediPen” was an abbreviation of ‘meditation pen’, and that the green ‘plus’ logo was intended to convey a sense of positivity in relation to the product. However, we considered that, in the context of both ads, consumers were likely to associate “Medi” with medicine, rather than meditation. We noted that the logo contained a green ‘plus’ symbol that resembled the Pharmacy Green Cross logo used by pharmacies in the UK, and considered that consumers were likely to associate the logo with pharmacies, and therefore also with health.
We also noted that in ad (b), the product name and symbol appeared near the claim “Health/Beauty”, which we understood was intended to categorise the advertiser’s business on Facebook. We considered that added to the product’s association with health.
We considered that the overall impression created by the ads was that the product offered medicinal or health benefits, and also considered that both the name and the symbol were medicinal or health claims for the purposes of the Code. Because we understood the product was not authorised by the MHRA, but the ads made health or medicinal claims, we therefore concluded that they breached the Code.
On that point, the ads breached CAP Code (Edition 12) rule 22.5 22.5 Marketing communications must not contain health or medicinal claims unless the product is authorised for those purposes by the MHRA. E-cigarettes may be presented as an alternative to tobacco but marketers must do nothing to undermine the message that quitting tobacco use is the best option for health. (Electronic cigarettes).
Action
The ad must not appear again in its current form. We told Medipen Ltd not to claim their product was the world’s first all-natural product of its kind unless they held adequate evidence to substantiate the claim. We also told them not to make health or medicinal claims for an e-cigarette unless the product was authorised for those purposes by the MHRA. We told them to ensure their ads were responsible by not associating e-cigarettes with illegal drugs.
