An ad seen in The House magazine, a weekly publication for the Houses of Parliament, for a tobacco producer. It addressed the Government's consultation on plain packaging of tobacco products and featured a cartoon showing confused looking walkers representing the "Tobacco Control Industry". An aeroplane overhead towed a banner that stated "PLAIN PACKAGING WILL HAVE UNINTENDED CONSEQUENCES" and the walkers stood around a signpost that featured text that stated "ILLICIT TRADE, LOSS OF REVENUE TO GOVERNMENT and TRADE DISPUTES". At the bottom of the ad was further text that stated "Plain packaging of tobacco products Illegal, unnecessary and damaging for UK business Imperial Tobacco www.imperial-trade.com".
The complainant, who understood that the Government had yet to make any final decisions on whether or not to introduce standardised packaging of tobacco products, challenged whether the claim that "Plain packaging of tobacco products" was "Illegal" was misleading and could be substantiated.
Imperial Tobacco Ltd said that the ad reflected their own opinion of the Government's proposal to introduce plain packaging for tobacco products and that it was clear that the ad was a satirical illustration of this position. They said that the claim "Plain packaging of tobacco products Illegal, unnecessary and damaging to UK business" was based on the title and content of their response to the Department of Health's consultation on the proposal to introduce standardised packaging of tobacco products. They believe that would have been apparent to their intended political readership of the publication in which the ad appeared, since it featured content regarding parliamentary news and policy developments, and the ad appeared in an edition published shortly after the submission of their response.
Imperial Tobacco referred to the elements of their response to the consultation that related to their opinion on why plain packaging would be illegal, citing both European and UK law. They said that there had been an acknowledgement by the Government that there was a "fundamental issue" concerning the legality of the introduction of plain packaging that ought to be determined by UK and European courts. They stated that plain packaging would deprive them of their intellectual property rights and was also contrary to the right to free movement of goods within the European Union. Furthermore, as a company which manufactured and sold a lawful product, they considered that plain packaging would infringe their right to freedom of expression.
We noted that the ad featured text that stated "PLAIN PACKAGING WILL HAVE UNINTENDED CONSEQUENCES" and listed some specific examples with further text at the bottom of the ad that stated "Plain packaging of tobacco products Illegal, unnecessary and damaging for UK business", which was accompanied by the advertiser's name and website address. We considered that this made it sufficiently clear that the claim "Plain packaging of tobacco products Illegal, unnecessary and damaging for UK business" was the advertiser's opinion on plain packaging for tobacco products and did not represent a position on the legality of the proposed policy that had been established by judicial decisions. Furthermore, we understood that the magazine was a weekly publication for the Houses of Parliament aimed at a political audience. We considered that such a readership would be aware of the consultation and understand that the ad, rather making a claim that an already implemented policy or set of regulations had been found to be illegal, expressed the advertiser's opinion on the proposal of plain packaging on tobacco products.
Therefore, we concluded that the claim was an expression of opinion and was not misleading.
We investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. and 3.6 3.6 Subjective claims must not mislead the consumer; marketing communications must not imply that expressions of opinion are objective claims. (Misleading Advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation), but did not find it in breach.
No further action necessary.