Summary of Council decision:
Three issues were investigated, all of which were Upheld.
A poster and digital billboard ad, for ELFBAR e-cigarettes, seen in London in late July and early August 2023:
a. A poster on the side of a bus stated “RECYCLING FOR A GREENER FUTURE GreenAwareness” followed by the recycling symbol. Two vapes were pictured, with the text “NEW ELFBAR 600V2 IS AVAILABLE NOW”.
b. The digital billboard featured the same products, text and symbol as ad (a).
The ASA received ten complaints, including from Adfree Cities and Imperial Tobacco Ltd.
All the complainants, who understood that the products were single-use vapes and not widely recyclable, challenged whether the ads:
1. were misleading because they did not make clear there were only limited recycling options for the products; and
2. misled about the environmental benefit that the products offered.
3. Adfree Cities also challenged whether the ads misleadingly highlighted an environmental benefit that resulted from a legal obligation to which competing products were also subject.
1. & 2. The ads were placed by Imiracle (HK) Ltd t/a ELFBAR, the global owner of the ELFBAR brand. They authorised Green Fun Alliance Ltd (ELFBAR), the importer and one of the distributors of ELFBAR products in the UK, to respond to the ASA.
ELFBAR said that research by Material Focus (a not-for-profit organisation aiming to ensure that electricals were reused and recycled), conducted in 2023, had shown that 70% of people threw away their single-use vapes because they did not know they were recyclable. The general intention of the ads was therefore to raise awareness that their vapes could be recycled and to encourage consumers to engage with recycling; the “GreenAwareness” programme was intended to communicate that. While they could continue to improve their products and increase their recycling initiatives they were reliant on consumers to actively recycle to reduce the number of products being thrown away.
They considered consumers would interpret “Recycling for a greener future” to mean that they were generally encouraging the recycling of vapes, and that vaping products – including ELFBAR vapes – were capable of being recycled. They did not think consumers would understand it as an absolute claim about the environmental impact of their products, or as a claim that their products were necessarily any more environmentally friendly or offered other environmental benefits compared with their own or competitor products.
The ads did not include a specific reference to their products or vaping products generally; they said the image of the products was incidental. ELFBAR did not claim to be ‘greener’ but instead as striving for a “greener future” by increasing the awareness of the recycling of vapes more generally. Improved consumer awareness would encourage consumers to seek out information about the various means of recycling their products.
ELFBAR also did not believe the ads would be understood by consumers to mean that vapes were recyclable (fully or otherwise), that they could be recycled through household waste or recycling provisions, or that they were easily recyclable elsewhere or through a variety of routes. The use of the recycling symbol indicated that an object was capable of being recycled, but not that it would necessarily be accepted in all recycling collection systems (including through household waste), or that it had been recycled. However, they recognised the ads could have been more specific about how vapes could be recycled and ELFBAR’s specific recycling initiatives.
They said single-use vapes could be recycled through many outlets, including but not limited to supermarkets, selected vape stores, and at locally-authorised recycling sites. They said those outlets were comprehensive and widely accessible by consumers. The options for recycling vapes were as easily accessible as those for other small electrical items in the same waste category. They said there was not a requirement that recycling options be offered in-store, and in any case ELFBAR could not offer in-store recycling options directly as an online distributor only. ELFBAR was not responsible for what recycling options were offered by third-party retailers. They did not consider there was evidence that any one recycling method was more likely to improve the recycling of vapes (when compared with all options available) and that, as well as its obligations, it was also incumbent on consumers to take action to choose from the options available to them.
Notwithstanding that, they were improving accessibility to recycling through their own initiatives. At the time the ads were published, 70 UK vape shops had dedicated ELFBAR recycling bins. This was a pilot programme which formed part of their work on developing and promoting a long-term recycling solution in the UK, under the GreenAwareness and “Recycling for a greener future” banners. They expected the number of independent shops in the programme to at least double by the end of 2023. The collection process was run in partnership with a lithium-ion battery and vape recycling company that delivered the products to an appropriately certified recycling organisation in the UK. The products were disassembled and the raw materials were recycled and reused.
ELFBAR was also working directly with UK retailers to deliver free in-store vape collection bins. They were committed to providing several thousand bins across the UK, with the first bins arriving in-store in October 2023. Each bin would be issued with guidance to ensure retailers were aware of their statutory obligations, along with guidance on government-recommended waste collection companies. The location of those bins would be recorded and, where appropriate, included in relevant online search facilities.
ELFBAR aimed to establish a closed-loop recycling system by 2025 that was mature, dismantlable and reusable. A new dedicated research and development facility was primarily focused on improved product development, to reduce environmental impact. One of their latest products (ELFBAR 600V2) had a modular and non-soldering design meaning that batteries could be more easily separated and recycled. They said their recycling partner had confirmed the design improvements enabled the reuse of 41% of each unit. They and their partners had been able to achieve a recycling and reuse rate of more than 96% and were working towards a rate greater than 99%. They said around 90% to 95% of an ELFBAR 600V2 could be recycled, excluding the cartridge that was treated separately because of chemicals. They were not aware of any competitor products that achieved the same rate. Less than 2% of the ELFBAR products they handled ended up in landfill.
Their recycling partner had also confirmed that the battery in ELFBAR 600V2 vapes was 20% smaller than in the previous generation of the vapes. They highlighted that reduction was better for the environment than reuse or recycling. Additionally, the cartridge component of the ELFBAR 600V2 was incinerated at high temperatures, with energy recovery generating electricity. They therefore considered that even if the ads were understood as a statement about the environmental impact of their products they did not mislead about the environmental benefits, because ELFBAR 600V2 had a high recycling and reuse rate.
Information about how to recycle their vapes was provided on their website. A dedicated page included links to a website operated by Material Focus. That website explained why it was important to recycle vapes and included a facility to search for locations where vapes – including specifically ELFBAR vapes – could be dropped off for recycling. ELFBAR was also developing a website to provide information to consumers about their GreenAwareness programme and to allow them to search for their nearest recycling location.
3. ELFBAR acknowledged that they, and their competitors, were subject to The Waste Electrical and Electronic Equipment (WEEE) Regulations 2013, which obliged vape producers to finance the take-back of vapes for recycling. They highlighted that, as required, both of their UK distributors were registered on the WEEE public register. They believed many of their competitors were non-compliant in that regard.
ELFBAR said the ads highlighted their recycling responsibilities. Raising consumer awareness about recycling was not a legal obligation; they had chosen to invest resource into it. Additionally, the ads were not concerned specifically with the environmental benefits their products may or may not offer, nor did they claim directly or indirectly that their vapes were any more recyclable than any other vapes. The improved recyclability of ELFBAR’s products resulted from their product research and development, based on their own environmental commitments and initiatives. There was no legal obligation to consider the future recyclability of a product during product design and manufacture.
The ads featured prominent ELFBAR branding, the claims “RECYCLING FOR A GREENER FUTURE” and “GreenAwareness”, the recycling symbol, and an image of two ELFBAR 600V2 vapes which were identified as being a new product that was “AVAILABLE NOW”. That product was a single-use vape.
The ASA considered the ads would be of most relevance and interest to consumers who were interested in purchasing the advertised products, many of whom would already be users of single-use vapes. The Material Focus research referenced by ELFBAR found that 73% of people who used single-use vapes threw them away. 70% threw them away because they did not know they could recycle them. We therefore considered that only a relatively small proportion of consumers who saw the ads would know that single-use vapes could be recycled. An even smaller proportion would be aware of the appropriate routes by which they must be recycled or how and where they could access them.
We considered consumers would interpret the ads’ focus and emphasis on the recycling and ‘green’ messaging in that context. As such, in the absence of any information about how to recycle the products, they were likely to expect that if they purchased ELFBAR’s single-use vapes they would be able to recycle them through a wide variety of routes including through easily accessible routes such as general recycling provisions at home.
Single-use (and rechargeable) vapes were classified as electrical and electronic equipment, which meant that to be responsibly disposed of they must be recycled, for both environmental and safety reasons. They could be recycled at local authority locations which catered for small electrical and electronic equipment waste, and at retail outlets which provided a drop-off service in-store. Retailers that sold less than £100,000 of electricals per annum could make provision for recycling at out of-store locations rather than providing an in-store route. We understood from Material Focus that at the time the ads were published many retailers that were legally obliged to provide in-store drop-off services were not doing so. We therefore understood that there were only limited recycling options for single-use vapes, some of which may not be easy for consumers to access.
We acknowledged ELFBAR’s intention was for the ads to educate and encourage consumers to recycle, and that they would be undertaking initiatives that would increase consumers’ ability to do so. However, because consumers would understand from the ads that they would be able to recycle ELFBAR’s single-use vapes through a wide variety of routes including by easily accessible routes such as home recycling provisions, when that was not the case, we concluded the ads were misleading.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 and 3.3 (Misleading advertising), 3.9 (Qualification), and 11.1 (Environmental claims).
As referenced above, we considered the ads focused on and emphasised recycling and environmental messages through the “RECYCLING FOR A GREENER FUTURE” and “GreenAwareness” claims. In addition to the implication that there were a wide variety of recycling routes available, including easily accessible ones, we considered, particularly in the context of the lack of consumer knowledge about the recycling of single-use vapes, that the ad also implied that ELFBAR single-use vapes were completely recyclable.
We understood from information published by Material Focus that up to 80% of the materials in vapes (single-use and rechargeable) could be recycled. They clarified that this excluded energy from waste, which if included would result in a percentage in the high 90s. They said, however, that vapes were particularly challenging and expensive to recycle.
ELFBAR’s newest single-use vape models included non-soldered batteries, which were easier to remove and therefore aided the recycling process. They had said that 41% of each ELFBAR 600V2 vape could be reused, and 55% could be recycled (which would include energy from waste). We accepted that the total 96% reuse and recyclability rate for individual ELFBAR 600V2 vapes that were processed by ELFBAR’s recycling partner was high, but they were not completely recyclable. We also had not seen information about the recyclability of their other single-use vapes – the ELFBAR V1 (which was still available for purchase in October 2023) and the “Cigalike”.
Additionally, we considered the claim “for a greener future” was ambiguous, and without qualifying information was likely to be understood by a significant proportion of consumers as a claim that ELFBAR’s recyclable vapes had less environmental impact than other vape products on the market. ELFBAR believed their single-use vapes had a higher reuse/recyclability rate than those of their competitors, but had not provided evidence of that. Additionally, we understood that single-use vapes had a significant impact on the environment, based on their full life cycle. While the accessibility to recycling provision and the amount of recyclable material within a single-use vape was similar to that of rechargeable vapes, over the course of their full life cycle more materials were used in delivering the same amount of vape inhalations than would be delivered by a rechargeable vape. Furthermore, while single-use vapes could be recycled, Material Focus’ research had found that over five million per week were being thrown away, and as a result were taken to landfill or incinerated. That equated to 65% of the 7.7 million single-use vapes purchased per week. Because we had not seen evidence that ELFBAR’s recyclable vapes had less environmental impact than other vape products on the market, we concluded that the claim “for a greener future” was likely to mislead consumers.
We considered that the inaccurate impression that the products were fully recyclable combined with the claim "for a greener future" exaggerated the environmental benefit of the products and was therefore likely to mislead consumers.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), 11.1, 11.3 and 11.4 (Environmental claims).
The CAP Code required that marketing communications must not mislead consumers about the environmental benefit that a product offered, for example by highlighting an environmental benefit that resulted from a legal obligation if competing products were subject to that legal obligation.
The WEEE Regulations required all producers of electrical and electronic equipment to finance the take-back of such equipment, which included vapes, for recycling.
In the context of the ads’ ambiguously general focus on and emphasis of recycling and environmental messages, and the lack of consumer knowledge around the recycling of single-use vapes, we considered consumers would interpret the ads to mean that there was something unique about ELFBAR or its products in relation to the environmental benefits it offered in relation to recycling. That could include, for example, the provisions they made for recycling their products or the funding they put towards such provisions, or the recyclability of the products compared to similar products.
We acknowledged ELFBAR’s initiatives to increase consumer awareness around the recycling of single-use vapes and to improve the recyclability of their products, and that these were not part of their obligations under WEEE. However, we had not seen evidence that ELFBAR or its products were unique in relation to its initiatives relating to recycling, and noted that ELFBAR’s competitors had the same obligations in relation to the funding of take-back for recycling as ELFBAR. We considered the ads misled regarding the environmental benefits of the product, including as discussed at points 1 and 2, as well as those that resulted from a legal obligation that competing products were subject to. We therefore concluded the ads were misleading in that regard.
On that point, ads (a) and (b) breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation) and 11.7 (Environmental claims).
The ads must not appear again in the forms complained of. We told Imiracle (HK) Ltd t/a ELFBAR to ensure their future ads made the basis of environmental claims clear, and did not mislead as to the environmental impact or benefit of their products.