Summary of Council decision:
Two issues were investigated, both of which were Upheld.
An Instagram post by Mylo Vape UK, an e-cigarette retailer, posted 2 October 2018, included the caption “#repost @rae_eleanor loving her #mylo” alongside the image of someone with an e-cigarette.
1. The ASA challenged whether the ad breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on Instagram.
2. Allen Carr’s Easyway challenged whether the ad breached the Code by featuring someone with an e-cigarette who appeared to be under 25 years old.
1. Mylo Vape UK accepted that the post could be regarded as indirectly promotional and was beyond purely being factual. They said they were unable to restrict users viewing the post as a general rule, but they could reduce the visibility of a particular post by not adding hash tags to it. Mylo Vape UK believed the Instagram platform was analogous to a website and therefore sharing factual information was permitted.
2. Mylo accepted that the image may have appeared to be of someone under 25, but said they were unable to verify the age of the individual.
CAP Code rule 22.12 reflected a legislative ban contained in the Tobacco and Related Products Regulations 2016 (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. The rule stated that, except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines were not permitted in newspapers, magazines and periodicals; or in online media and some other forms of electronic media. It further stated that factual claims about products were permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control.
The ASA firstly considered whether the ads directly or indirectly promoted a nicotine-containing e-cigarette. An unlicensed e-cigarette was prominently featured in the ad with the brand name Mylo clearly shown on the product. We understood Mylo sold only nicotine containing e-liquid; therefore, we considered the ad directly promoted an unlicensed nicotine-containing e-cigarette and consequently the restriction that applied to online media under rule 22.12 was applicable.
As above, rule 22.12 did allow for factual claims to be made about such products on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control. We therefore considered whether Instagram was an online media space where such advertising, using factual claims only, was permitted. We understood that, while promotional content was prohibited on retailers own websites, rule 22.12 specified a particular exception that the provision of factual information was not prohibited. The basis of the exception to the rule was because consumers had to specifically seek out that factual information by visiting the website.
CAP guidance on “Electronic cigarette advertising prohibitions” stated that in principle there was likely to be scope for the position relating to factual claims being acceptable on marketers’ websites, to apply to some social media activity. A social media page or account might be considered to be analogous to a website and able to make factual claims if it could only be found by those actively seeking it. We understood that it was possible for posts from a public Instagram account to be distributed beyond those users who had signed up to follow the account. Firstly, because posts would automatically be distributed to those users following the hashtags they contained. Secondly, because it was also possible for posts from a public Instagram account to appear on another user’s Instagram Explore page, where content was automatically generated for the user to see. We considered both mechanisms were consistent with content being pushed to consumers without having opted into to receive the message it contained and therefore that neither mechanism was equivalent to actively seeking out information about e-cigarettes. Given those characteristics, we considered that material from a public Instagram account was not analogous to a retailer’s own website and that material posted from such an account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that neither promotional nor factual content was permitted.
Notwithstanding the above, we considered that in any case the ad contained content which clearly went beyond the provision of factual information and was promotional in nature. The ad contained imagery of a woman which was significant in the post without being directly related to the product itself. The ad therefore went beyond factually describing the e-cigarette or its features and was instead promotional in nature. Because we considered that material distributed from a public Instagram account was not analogous to a website, meaning that neither promotional nor factual content that promoted nicotine-containing e-cigarettes was permitted, we concluded that the ads should not have appeared in that manner and therefore breached the CAP Code.
On that point, the ads breached CAP Code (Edition 12) rule 22 .12 (Electronic cigarettes).
Notwithstanding that we did not consider the ad was permitted on Instagram as set out in point 1,, CAP Code rule 22.10 stated that anyone shown using e-cigarettes or playing a significant role must neither be, nor seem to be, under 25 years of age. We considered the person shown in the ad appeared to be using an e-cigarette and, as the only person featured in the post’s image, they played a significant role in it. We considered that the woman appeared to be under 25 and we had also not seen evidence that she was 25 or older at the time the ad was published.
We therefore concluded that the ad breached the Code. On that point, the ad breached CAP Code (Edition 12) rule 22.10 (Electronic cigarettes).
The ad must not appear again in the form complained about. We told Global Vaping Group Ltd t/a Mylo Vape UK that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines should not be made from a public Instagram account in future, unless they had taken steps to ensure they would only be distributed to those following their account and would not be seen by other users. If advertising in media permitted under rule 22.12, they must not show people who are, or seem to be, under 25, using e-cigarettes or playing a significant role.