Background
Summary of Council decision:
Ten issues were investigated, all of which were Upheld.
Ad description
A website for a vape company, www.elfbar.co.uk, seen in April and May 2023.
The homepage stated, “ELFBAR 600. Voted #1 Best Disposable Vape. Choose from over 30 flavours, including 6 new delicious flavours. NOW 3 FOR £12. MAKE THE SWITCH TODAY”. Several vapes were pictured and text stated, “3 for £12”.
A web page for the ELFBAR Loyalty Scheme featured text which stated, “Free to join” and “collect points for being a loyal ELFBAR UK customer! … sign up today for special bonuses and extra points … For every 100 points you earn, you get £1 added to your account”.
Another web page for a disposable vape featured text which stated “The most popular disposable, the ELFBAR 600 is a simple, clean design with an ergonomic mouth tip for comfort. It delivers up to 600 puffs in various delicious flavours, with 20 mg/ml of nic salts offering a richer vaping experience and smoother throat hits for an all-day vape”. Further down the page, text also stated, “Check out the great reviews for the ELFBAR 600 range and you'll see why they're the #1 best-selling disposable vape. Perfect for both new vapers and existing vapers, the ELFBAR 600 vape is small, compact and packed with flavour. Here's just one of the many 5 Star reviews ...”.
Another web page featured a blog titled “Why is everyone so obsessed with ELFBARS?”. Under the sub-heading “ACCESSIBILITY”, text stated, “We like to think when a craving does arise, there's nothing more convenient than having an ELFBAR by your side". Under the sub-heading “VARIETY” text stated, “Whether you've been vaping for a long time, or you only just picked up your first ELFBAR recently, we understand that things can get quite tedious if you keep using the same flavours, and keep making regular payments but don't really seem to be tasting the flavours. This can drain your enthusiasm to keep yourself on the straight and narrow, so we have tailored our entire business model on the importance of switching things up".
Another web page, titled “Drink Pairings with ELFBAR” featured the Cotton Candy Ice Elf Bar 600, and stated, “Cotton Candy Ice – This is a favourite at any fun fair or tuck shop that you're sure to remember when you were young. It's definitely one for those of us with a sweet tooth".
Issue
Imperial Tobacco Ltd and Nicoventures Retail (UK) Ltd, who understood that only factual content was permitted on marketers’ own websites for unlicensed nicotine containing e-cigarettes and their components, challenged whether the following claims were promotional claims, and therefore in breach of the CAP Code:
1. “ELFBAR 600. Voted #1 Best Disposable Vape. Choose from over 30 flavours, including 6 new delicious flavours. NOW 3 FOR £12. MAKE THE SWITCH TODAY”.
2. “Collect points for being a loyal ELFBAR UK customer! … sign up today for special bonuses and extra points … For every 100 points you earn, you get £1 added to your account”.
3. “Check out the great reviews for the ELFBAR 600 range and you'll see why they're the #1 best-selling disposable vape”.
4. Perfect for both new vapers and existing vapers, the ELFBAR 600 vape is small, compact and packed with flavour. Here's just one of the many 5 Star reviews ...”.
5. “The most popular disposable, the ELFBAR 600 is a simple, clean design with an ergonomic mouth tip for comfort”.
6. “It delivers up to 600 puffs in various delicious flavours, with 20 mg/ml of nic salts offering a richer vaping experience and smoother throat hits for an all-day vape”.
7. “Why is everyone so obsessed with ELFBARS?”
8. “We like to think when a craving does arise, there's nothing more convenient than having an ELFBAR by your side".
9. “Whether you've been vaping for a long time, or you only just picked up your first ELFBAR recently, we understand that things can get quite tedious if you keep using the same flavours...”
10. “Cotton Candy Ice – This is a favourite at any fun fair or tuck shop that you're sure to remember when you were young. It's definitely one for those of us with a sweet tooth”.
Response
1. - 3. Flavour Warehouse t/a Elfbar said they had removed multibuys, labels and loyalty content from the web pages. They understood that, under the CAP Code, they were allowed to make bulk and reduced-price statements on their website. They considered the claim “collect points for being a loyal ELFBAR UK customer! … sign up today for special bonuses and extra points … For every 100 points you earn, you get £1 added to your account” reflected the fact they operated a loyalty programme online, on which customers earned loyalty points, and that it only benefited existing customers who were already age-verified. Elfbar believed the claim “Voted #1 Best Disposable Vape” was a factual statement because Nielsen data showed the ELFBAR 600 was the best-selling disposable vape product in the UK and because it had won a prestigious industry award for being the best disposable vape. They actively encouraged product reviews from customers and considered all reviews on their website to be genuine.
4. - 6. Elfbar believed the claim “small, compact and packed with flavour” was purely factual. They said the product was a suitable alternative for adults looking for a less harmful product than tobacco cigarettes, meaning the statement that the device was “perfect” for “new vapers” was factual. They asserted the claim “the most popular disposable, the ELFBAR 600 is a simple, clean design with an ergonomic mouth tip for comfort” was based on facts. They said the terms “richer” and “smoother throat hits” referenced nicotine salts, which were used in disposable vapes and were more efficient in reducing nicotine cravings compared to liquids used in other devices. Elfbar said they had amended that statement to highlight the comparison but still included the phrase “smoother throat hit” in the updated copy.
7. - 9. They said the claim “Why is everyone so obsessed with ELFBARS?” was a blog title which responded to growing consumer curiosity in the brand. They said it outlined how Elfbar had become a popular brand in the UK and that the title was factual in nature. They had removed the blog as part of a review of the content on that web page. They also believed the phrases within the blog post “We like to think when a craving does arise, there's nothing more convenient than having an ELFBAR by your side" and “Whether you've been vaping for a long time, or you only just picked up your first ELFBAR recently, we understand that things can get quite tedious if you keep using the same flavours ...” were factual statements and not promotional in nature.
10. Elfbar said the claim “Cotton Candy Ice – This is a favourite at any fun fair or tuck shop that you're sure to remember when you were young. It's definitely one for those of us with a sweet tooth” had been removed from their website.
Assessment
Flavour Warehouse Ltd, who responded to the complaints, stated the elfbar.co.uk website was owned by IMIRACLE (HK) LTD, who traded as Elfbar in the UK and did not believe Flavour Warehouse Ltd should be named as the advertiser.
The ASA noted the Terms of Use on the website https://www.elfbar.co.uk/ stated “Who we are and how to contact us. The Elf Bar U.K website is a site operated by Flavour Warehouse Limited ("We")”. It stated Flavour Warehouse’s company number, VAT number, and provided the address for their registered office and trading office. It stated “To contact us, please email Flavour Warehouse” and provided their customer service line phone number. We noted the Terms and Conditions on the same website stated “Who we are. We are Flavour Warehouse Limited trading as Elf Bar U.K a company registered in England and Wales”. We also noted that Flavour Warehouse had responded to the complaint. Because the advertising claims were on a website which appeared to be developed, operated and maintained by Flavour Warehouse Ltd, we considered them to be responsible for the claims.
The ASA understood CAP Code rule 22.12 reflected a legislative ban contained in the Tobacco and Related Products Regulations (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. The rule required that only factual claims about unlicensed, nicotine-containing e-cigarettes were permitted on marketers’ own websites, meaning that claims which were promotional in nature were prohibited.
1. - 3. Upheld
We understood the claims were intended to provide information about the Elfbar 600 product and the loyalty scheme. Although we acknowledged that a simple description of the product would have been acceptable, we considered the claim “Voted #1 Best Disposable Vape” was promotional in nature. We acknowledged the claim was intended to reflect that the Elfbar 600 was the best-selling disposable vote according to Nielson data and had won an award, although the ad did not state which award it had won. We considered the claim went beyond being factual as the use of the word “best”, in the context of a marketing communication, had the effect of promoting the product. We also considered the use of the phrases “delicious flavours”, “MAKE THE SWITCH TODAY!” and “check out the great reviews” went further than simple factual claims and constituted descriptive, promotional language. We also considered the phrase “sign up today for special bonuses and extra points” was designed to entice new customers and was therefore promotional rather than factual. For those reasons, we concluded that the claims were promotional and therefore breached the Code.
On those points, the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
4. - 6. Upheld
We understood the claims were intended to provide information about the Elfbar 600 product. However, we considered the phrases “perfect for both new and existing vapers” and “packed with flavour” went further than simple factual claims and constituted descriptive, promotional language. Although we acknowledged the claim that the product delivered “up to 600 puffs” was factual, we considered claiming it had “delicious flavours” that offered “a richer vaping experience and smoother throat hits”, and a “clean design with an ergonomic mouth tip for comfort” also constituted descriptive, promotional language. For those reasons, we concluded that the claims were promotional and therefore breached the Code.
On those points, the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
7. - 9. Upheld
We understood the claims were part of a blog post which intended to provide information about the Elfbar 600 product and acknowledged the post had been removed. We considered the phrases “why is everyone so obsessed with ELFBARS” and “there’s nothing more convenient than having an ELFBAR by your side” were not factual statements, but had the effect of promoting Elfbar products by suggesting they were a fun new craze. We also considered the claim “we understand that things can get quite tedious if you keep using the same flavours” had the implied message that consumers ought to try out different flavours of vapes, and therefore had a promotional element to it. For those reasons, we concluded that the claims were promotional and therefore breached the Code.
On those points, the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
10. Upheld
We understood this claim was intended to provide information about the Cotton Candy Ice flavoured Elfbar product and we acknowledged the post had been removed. We considered the phrase “This is a favourite at any fun fair or tuck shop that you're sure to remember when you were young. It's definitely one for those of us with a sweet tooth” went beyond a factual statement about the product and served to make the product appear more attractive to consumers. We therefore concluded that the claim was promotional and breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
Action
The ad must not appear again in its current form. We told Flavour Warehouse Ltd t/a Elfbar to remove the claims found to be in breach of the Code and to ensure that they did not use promotional claims for unlicensed nicotine-containing e-cigarettes or e-liquids on their website.
