Summary of Council decision:
Two points were investigated, both of which were Not upheld.
The Tobacco and Related Products Regulations 2016 (‘the Regulations’) became law in the UK on 20 May 2016, implementing the revised European Tobacco Products Directive. The Regulations contain significant prohibitions on ads for nicotine-containing e-cigarettes that are not licensed as medicines.
These prohibitions have not yet been reflected in the Committee of Advertising Practice (CAP) Code, and CAP will shortly consult on how best to do this. However, the law itself and the accompanying guidance produced by the Department of Health make clear that ads for these products are not permitted in newspapers from 20 May 2016.
A four-page wraparound press ad for Blu electronic cigarettes was published in the London Evening Standard on 18 April. The front cover showed an image of the back of a nude woman with her head turned to look back towards the camera holding an e-cigarette. Text stated “JUST YOU & blu E-cigarettes”.
The ASA received 13 complaints:
1. all the complainants objected that the ad was offensive, because they believed it was sexist and objectified the nude woman featured on the front cover; and
2. six complainants, who considered that the image of the nude woman was overtly sexual, objected that the ad had been inappropriately placed on the front of a regional newspaper where children could see it.
1. & 2. Fontem Ventures BV t/a Blu said the ad appeared as part of a wider campaign which depicted the lifestyle of five characters. This ad featured the model on the front-cover page as well as a female pilot on the back page and a male comedian on one of the inside pages. They said the black and white cover image was shot in a classical, stylised and artistic way. The model’s expression was contemplative and, although the top of her buttocks were visible, her breasts were not displayed. They did not believe the image was provocative or sexually suggestive, and nor did it portray the model as an object. They understood that some people might find the nudity distasteful, but did not believe the ad was likely to cause serious or widespread offence. They said that whilst developing the campaign they consulted with CAP Copy Advice on the ad concept and image and in their review of the final ad version CAP advised that the full version of the image of the nude model (which was cropped for this ad) should be carefully targeted. They believed the Evening Standard was an appropriate publication for the ad because it had a predominantly adult readership and was mainly distributed in and around mainline London stations after 4 pm, and its contents were not targeted to children.
The Evening Standard did not believe the ad contained anything which was likely to cause serious or widespread offence. They said they had a readership of over 1.9 million people and had received three complaints themselves about the ad. They did not believe the ad was sexist or objectified women. They said it was not degrading to show the back of a naked woman and she was not shown in a demeaning pose or performing a stereotypical role – she was smoking an e-cigarette alone in an apartment. She appeared to be an example of someone who might use the product; not as a mere object. They also said that the ad was not sexually explicit or provocative. The woman’s breasts were not visible and she was not posing in a sexually suggestive way and there was no sexual innuendo. They believed the ad was no more than mildly sexual and was therefore not unsuitable to be seen by children.
1. Not upheld
The ad featured an image of a model who was naked and holding an e-cigarette with large text stating “JUST YOU & blu E-cigarettes”. The image was cropped so that the top of her buttocks were visible. The ASA considered that the tone of the ad was sensual and sexually suggestive, but was not sexually explicit. Whilst we understood that some readers might find the ad distasteful because it depicted nudity which was not directly relevant to the product advertised, we did not consider that the ad portrayed the model as a sexual object. We therefore concluded that the ad was unlikely to cause serious or widespread offence.
On this point we investigated the ad under CAP Code (Edition 12) rule
Marketing communications must not contain anything that is likely to cause serious or widespread offence. Particular care must be taken to avoid causing offence on the grounds of race, religion, gender, sexual orientation, disability or age. Compliance will be judged on the context, medium, audience, product and prevailing standards.
Marketing communications may be distasteful without necessarily breaching this rule. Marketers are urged to consider public sensitivities before using potentially offensive material.
The fact that a product is offensive to some people is not grounds for finding a marketing communication in breach of the Code. (Harm and offence), but did not find it in breach.
2. Not upheld
We considered that the ad was sensual and sexually suggestive, but was not sexually explicit. It had appeared on the front of the London Evening Standard, a free newspaper, and would therefore have been seen by a large number of people not restricted to those who chose to read the paper, including children. However, because of the relatively mild nature of the image we did not consider that it was unsuitable to be seen by children in this context and we therefore concluded that the ad had not been placed inappropriately.
On this point we investigated the ad under CAP Code (Edition 12) rule 1.3 1.3 Marketing communications must be prepared with a sense of responsibility to consumers and to society. (Social responsibility), but did not find it in breach.
No further action necessary.