Background
Summary of Council Decision:
Two issues were investigated, both of which were Upheld.
Ad description
A national press ad for an electronic nicotine dispenser, which appeared on 24 November 2011 was headlined "LOOKS, SMOKES, TASTES & SATISIFIES like a cigarette". Text appearing on what appeared to be a cigarette packet stated "CIGIREX. Contains Nicotine, Zero Tobacco, Zero Tar, Zero Tobacco Smoke, Zero chemicals, Zero odour ... 100% Satisfying. 100% Safe". The ad compared Cigirex to cigarettes and provided further information about the product and information on how to buy the product.
Issue
The complainant challenged whether the following claims were misleading and could be substantiated:
1. "Zero chemicals"; and
2. "100% safe".
Response
UKAMS plc, Cigirex's advertising agency, responded on their behalf.
1. UKAMS explained that during the creative process, their client took extensive advice from the CAP Copy Advice service so as to ensure their ad complied with the Code. They believed that the ad was compliant and did not breach the Code.
UKAMS said that the composition of Cigirex was nicotine 16 mg, water, vegetable glycerine and flavours. They said that in the context of the ad, which included a comparison between Cigirex and normal cigarettes, they were confident that the composition of Cigirex supported the claim "zero chemicals".
2. UKAMS said the claim "100% Safe" related to the fact that Cigirex did not contain any tobacco or carcinogens which were recognised to be the cause of smoking related ailments and diseases. Therefore, they were comfortable with the claim.
UKAMS provided 14 test reports which had been carried out by the Scientific Services at Staffordshire County Council. UKAMS believed that those test reports, which included the statement "there was no evidence of any tobacco, tar or other chemicals associated with the product", substantiated their claims.
Assessment
1. Upheld
The ASA welcomed that Cigirex had sought advice from the CAP Copy Advice team in respect of a number of different ads, but we noted that they had not sought advice in relation to the ad complained about.
We understood the complainant believed Cigirex contained propylene glycol, which they believed was a chemical. Whilst Cigirex did not comment on the complainant's point, we understood that Cigirex's ingredients included nicotine, water, vegetable glycerine and flavours.
We considered the claim "zero chemicals" was absolute, was capable of substantiation and we, therefore, expected Cigirex to hold suitable evidence. Because Cigirex had not commented on whether or not it contained propylene glycol, which we considered to be a chemical, we could not ascertain whether Cigirex was propylene glycol free. We noted, however, that it included nicotine, which we considered consumers were likely to consider to be a chemical. For those reasons, we considered that Cigirex should not make the claim "zero chemicals" and we concluded that the claim had not been substantiated and was misleading.
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) 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).
2. Upheld
We noted a number of samples were tested and the test reports stated the levels of nicotine and tar in each sample. We noted most of the reports stated that, in terms of nicotine levels, the product was equivalent to either “mild smoking cigarettes” or “very mild smoking cigarettes”.
We understood from their test reports that Cigirex contained tar and we considered that they implied that Cigirex delivered tobacco to the user - ingredients which the ad claimed were not present in Cigirex. We asked Cigirex to comment on the apparent discrepancy in the reports, but they did not do so. We noted the ad made clear that Cigirex contained nicotine and we understood from a previous ASA investigation that nicotine was addictive, raised blood pressure and was a vasoconstrictor, making it harder for the heart to pump through the constricted arteries, and caused the body to release its stores of fat and cholesterol into the blood. Because of that, we considered the presence of nicotine contradicted the claim that Cigirex was 100% safe. Moreover, we also considered that we had not seen evidence that demonstrated that Cigirex had no detrimental effect on the body, as was implied by the claim "100% safe". For those reasons, we considered the claim had not been substantiated and was misleading.
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), 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 12.9 12.9 Marketers must not encourage consumers to use a product to excess and must hold proof before suggesting their product or therapy is guaranteed to work, absolutely safe or without side-effects (subject to rule 12.19). (Medicines, medical devices, health related products and beauty products).
Action
The ad must not appear again in its current form. We told Cigirex to remove the claims "100% safe" and "zero chemicals" unless they held adequate and robust substantiation.
