An online banner ad for the e-cigarette and e-liquid manufacturer Grey Haze, seen on 2 June 2017, on the e-cigarette forum www.planetofthevapes.co.uk, stated "10% OFF EVERYTHING! POTV10 USE AT CHECKOUT. WWW.GREYHAZE.CO.UK". The ad provided a link to another page on planetofthevapes.co.uk which contained a link to the Grey Haze website.
The ASA challenged whether the ad promoted e-cigarettes in an online banner ad, a medium in which unlicensed nicotine-containing e-cigarettes and their components were prohibited, and therefore breached the Code.
Grey Haze Online Ltd t/a Grey Haze said that "10% OFF EVERYTHING" was a generic discount code offered to readers of Planet of the Vapes and was not a store-wide discount viewable to the general public. They said they did not sell any nicotine containing e-cigarettes or e-liquids that had not been notified to the MHRA and were from licensed UK based manufacturers.
Grey Haze said their products met all the legal requirements of the Tobacco Products Directive. They said that while some of their products, such as e-cigarette kits and pipes, could be used with nicotine-containing e-liquids, those products were not exclusively designed to do so.
Planet of the Vapes said the ad did not directly link to a web page or another web site but to a directory which was not a paid-for listing, and which did not mention any specific e-cigarettes or e-liquids. They said the offer "10% OFF EVERYTHING!" was a generic discount code, rather than a specific product promotion, and therefore they believed it did not directly promote unlicensed nicotine-containing e-cigarettes or e-liquids, but merely advertised the existence of a vendor which they considered complied with the Code.
Rule 22 .12 of the CAP Code 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, advertisements with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which are not licensed as medicines were not permitted in online media. While the rule did not necessarily prohibit ads for e-cigarette businesses, such ads would need to do nothing that promoted, directly or indirectly, unlicensed nicotine-containing e-cigarettes or their components.
We noted that all of Grey Haze’s e-cigarettes and e-liquids had been notified to the MHRA before they were sold, as required by the TRPR. However, that did not mean that they were licensed as medicines by the MHRA, and therefore ads for those products were covered by the requirements of rule 22 .12.
We acknowledged that the focus of the ad was on the Grey Haze e-cigarette website rather than any specific product with no images of specific e-cigarettes or e-liquids. However, we understood the headline claim “10% off everything” applied to a number of unlicensed nicotine-containing e-liquids and e-cigarettes which could be used to consume nicotine-containing e-liquids. We therefore considered that the ad had the effect of promoting unlicensed nicotine-containing e-cigarettes and e-liquids, and concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rules 22 .12 (Electronic Cigarettes).
The ad must not appear again in its current form. We told Grey Haze to ensure that their ads did not feature promotions that included discounts on unlicensed nicotine-containing e-cigarettes or e-liquids in media covered by the TRPR.