Summary of Council decision:
Two issues were investigated, of which one was Not upheld and the other Upheld.
A video ad for Nordic Spirit, a nicotine pouch product, was seen in December 2020 during an episode of “Sweetness & Lightning” on the Crunchyroll anime app. The ad featured a number of different people getting ready to play an online video game together, with a soundtrack of electronic dance music. One man said, “You in?” and the other characters were shown putting nicotine pouches in their mouths and saying, “Yeah” and “I’m in” before they started playing. The players were shown engaging with and reacting to the game and saying, “Whoa”, “Oh yeah”, “Come on”, “Perfect”, etc.
Online text that appeared at different times throughout the ad stated “No smoke, no vapour”, “ A new nicotine experience”, “Great flavours”, “Pocket-sized convenience”, “Never miss a moment”, “The UK’s No. 1 Nicotine Pouch”, “Play. Uninterrupted. Get your free sample at nordicspirit.co.uk”. Small text on screen throughout the ad stated “18+ This product contains nicotine. Nicotine is an addictive substance”.
The complainant challenged whether the ad:
1. was appropriately targeted; and
2. irresponsibly implied that using the product made gaming more fun and enjoyable.
1. Gallaher Ltd, the UK trading company of Japan Tobacco International (JTI), t/a Nordic Spirit, stated that the ad was not intended to target minors or be viewed by them. They had instructed their agency to target “18+ ONLY. Existing Smokers Vapers Nicotine Users”. The agency was familiar with and sought to abide by CAP guidance on advertising of age-restricted products online.
The agency confirmed that sites that entered their portfolio would share demographic data based on internal sign-ups, Google Analytics and other internal or third-party tools. If the site had 75% or more users who were over 18, they would consider running age-restricted ad campaigns (including for nicotine products). Sites sometimes had internal block list categories, which the agency would adhere to. Sites were clearly placed in buckets based on these factors and the list shared by sales account managers with advertisers for their explicit acceptance. Once an order was executed between an advertiser of age-restricted products and the agency, it was transferred into the video ad server, including all of the campaign targeting and geography, and ads were checked to minimise human error. On sites that could be perceived in any way as being of interest to under-18s, they applied additional third-party data segmentation, based on data collected to confirm a user’s age. The ad server ensured that the age-restricted campaign would only serve on a site with more than 75% users over 18, in the correct geography, and only when a cookie inferred that a user was 18+. All of these procedures had been adhered to with respect to the Nordic Spirit campaign, though JTI confirmed they could not locate a record of having specifically been asked to approve Crunchyroll as a location for their ads.
Crunchyroll had been identified as being appropriate for age-restricted advertising using a number of metrics; 85% of Crunchyroll’s audience was aged 18 or over, and the terms of service required users to confirm they were aged at least 16. To subscribe to a premium account, users needed to provide credit card or PayPal details. Beyond that, the use of third-party age data provided a second line of defence. If no age segment data was available on a user, because, for example, they were browsing in private mode, then the ad would not be served to them. That would be the case both for users who were logged in to the site and those who were visiting it without being logged in.
JTI further stated that “Sweetness & Lightning”, the anime show during which the ad had been seen, was not targeted at children. They said that the category in which the anime was placed was “seinen”, which was aimed at males aged 18 to 45 years. It explored adult themes, such as bereavement and single parenthood, which were unlikely to have undue appeal to children.
JTI further stated that the content of the ad was tailored to appeal to adults. It cited research stating that gaming was predominantly an adult pursuit in the UK. JTI also stated that all actors who appeared in the ad were, and appeared to be, over the age of 25. Ellation, LLC (who owned the Crunchyroll app) stated that the ad had run on their service; however, it had not been approved by them. They said that under their agreement with JTI’s agency, any video ad within non-approved categories required Ellation’s approval prior to being run. Ellation also instructed the agency that alcohol, tobacco and political ads were prohibited within the app. They said they did not think the ad was suitable for their viewers, and had terminated their relationship with the agency.
2. JTI stated that the ad was designed to emphasise the convenience of Nordic Spirit for existing adult nicotine users, and therefore to offer an alternative to other nicotine-containing products such as cigarettes and e-cigarettes. Such products needed to be handled by the user and might require them to take a break from what they were doing (for example, to use them or in order to go outside to smoke). Nordic Spirit was hands-free and enabled adult users to continue their activity, such as playing a video game, uninterrupted. That was highlighted through the main taglines in the ad. The convenience and practical features of the product were emphasised throughout. JTI said the actors’ dialogue centred around their ability to join in with the game, and at no point did they suggest the product made the game more fun or enjoyable.
Only two characters were shown using the product and neither of them seemed to be enjoying the game any more than the others. JTI said their instructions to their agency emphasised the theme of convenience and did not include any reference to making the use of the product or the game more fun or enjoyable, or to conveying any “mood-altering” or “stimulant” effect. They said they expressly instructed their agency to avoid any messaging or implication that the product could affect concentration or otherwise have a stimulant effect.
1. Not upheld
The ASA understood that Nordic Spirit nicotine pouches did not contain tobacco and were not subject to the statutory restriction on advertising of tobacco products. They could only legally be sold to people over 18 years of age and we therefore considered that marketers should be able to demonstrate that they had taken reasonable steps to ensure that ads were directed at an audience aged 18 and over so as to minimise under-18s’ exposure to them.
We considered that age-restricted ads on online platforms should not be targeted solely based on age data, because of younger users misreporting their age or different people sharing the same device. Also advertisers should support that method of targeting by using interest-based factors to help remove those aged under 18 from the target audience of age-restricted ads.
The Crunchyroll app allowed users to watch a variety of different anime TV series, many of which were aimed at an adult audience. While the series during which the ad was seen was likely to be suitable for children, we did not consider that the themes covered were likely to be of particular interest to them. We understood that 85% of the app’s audience base was over 18. While the terms of service required users to confirm they were over 16, we noted that in order to create a free account, users only had to self-report that they were over 13.
That notwithstanding, JTI’s agency had taken additional steps and used interest-based data to infer individuals’ age, over and above their self-reported age, and only served ads to users who were inferred to be over 18. We understood from the complainant that the ad had not actually been seen by a child. Taking into account the broad audience of the app, which was unlikely to have particular appeal to children, and the additional interest-based targeting factors that had been implemented, we considered that the ad had been appropriately targeted and did not breach the Code on that point.
On that point, the ad was investigated 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 was not found in breach.
As noted above, nicotine pouches could be lawfully sold and advertised. We also understood that the product would have an appeal to adult smokers looking for an alternative way of consuming nicotine without tobacco. However, we considered that the presence of nicotine, which was addictive, meant that the product needed to be advertised responsibly. We noted that one character in the ad was shown placing a pouch in his mouth as the music started to build before the group started playing their game. A woman was also shown taking a pouch and she was next shown saying, “Oh yeah”. The ad also referred to “a new nicotine experience”. We considered that the combination of the depiction of players using the product as they were about to start the game, the sense of anticipation created by music building to a drop, and their reactions of excitement, associated the use of the product with the game. These all implied that it had a mood-altering and stimulant effect which would enhance enjoyment and gameplay. In the context of an ad for a product that contained nicotine, we considered that was irresponsible and breached the Code.
On that point, the ad breached 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).
The ad must not appear again in the form complained about. We told Gallaher Ltd t/a Nordic Spirit to ensure their ads did not imply that nicotine pouches had mood-altering or stimulant effects.