A post for Elf Bar, an electronic cigarette brand, on social media platform Discord, www.discord.com, dated 4 January 2023. The post appeared on Elf Bar’s server, “EB Planet” in a group titled “# GB | uk-website-news”, under a channel called “ELFBAR”, and stated, “Regular Discord User Discount @ United Kingdom https://www.elfbar.co.uk/” and “All UK Discord Users will enjoy 5% off on everything. Code: DISCORD5”. A circular image featured text stating, “USE CODE DISCORD5” and “5% OFF NEXT ORDER”.
The ASA challenged whether the ad breached the Code by directly promoting unlicensed nicotine-containing e-liquids and their components in online media.
Imiracle (HK) Ltd t/a Elf Bar said they considered the post was factual in nature, and it had been produced by Elf Bar’s in-house marketing team on the basis of providing material to a platform considered to be analogous to the Elf Bar UK website. They said they had considered the functionality of the Discord site and the look of the relevant channels, and believed that the material in question was published on a site that could only be found by those actively seeking it, and was not available to general unprotected or unregistered views.
Elf Bar said they had, however, removed the post from Discord and welcomed further guidance on the matter from the ASA.
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.
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 that consumers had to specifically seek out that factual information by visiting a website, as opposed to it being actively promoted to them, as set out in the CAP guidance ‘Electronic cigarette advertising prohibitions’. We considered that, in principle, there was likely to be scope for the position relating to factual claims being acceptable on marketers’ websites to also 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 considered whether Discord was a non-paid-for online space where such advertising, using factual claims only, was permitted. The ad was posted on Discord within Elf Bar’s ‘EB Planet’ server, a space for members comprised of various channels containing chat groups, and appeared in a group related to news about Elf Bar’s UK website. We understood that the EB Planet server on Discord was accessible via invitation only, and upon accepting an invitation users joined the server and could view the content and communicate within the chat groups. Additionally, we understood that the content within Elf Bar’s server was not accessible to, or otherwise shared with, other users on Discord unless they had joined that server. Because the content in the EB Planet server could only be found by those actively seeking it, we considered Elf Bar’s server on Discord was a non-paid-for online space under the marketer’s control which was analogous to Elf Bar’s website. Therefore, we considered that factual claims about nicotine-containing e-cigarettes and their components were permitted in that space.
Notwithstanding that, we considered the ad contained claims that were promotional in nature. It stated “All UK Discord Users will enjoy 5% off on everything. Code: DISCORD5”, and the claim “5% OFF” also featured prominently in the accompanying image. We considered the discount was presented as an incentive to purchase Elf Bar products, and that the post suggested there was an element of exclusivity to being a Discord user or having seen the discount on Discord. We therefore considered that the claims in the ad went beyond factual descriptions of Elf Bar’s products.
The advertised discount applied to all products on the Elf Bar UK website, the Official Elf Bar Online Vape Store, and we understood that a range of nicotine-containing e-cigarettes and their components were available on that site. We therefore considered the ad had the direct effect of promoting nicotine-containing e-cigarette products which were not licensed as medicines. Because promotional claims for nicotine-containing e-cigarettes were not permitted in online media, we concluded the ad breached the Code. We welcomed Elf Bar’s assurance that they had removed the ad.
The ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
The ad must not appear again in the form challenged. We told Imiracle (HK) Ltd t/a Elf Bar that marketing communications with either the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components, which were not licensed as medicines, must not appear in prohibited media.