Summary of Council decision:
Two issues were investigated, both of which were Upheld.
A website and a Facebook post for Kick Ash Vapes, a retailer selling e-cigarettes:
a. The website www.kickashvapes.co.uk, seen in March 2022, featured a product listing for “Guava Rubicana by Frooti Tooti 120ML”. Text in the description stated, “It features a sweet and sharp taste of energising guava that fills your mouth with fruity juice in combination with fizzy sparks you must try a truly tropical vape juice!” and “2x Nicotine Shots Included”.
Another page had a product listing for “Lychee Rubicana by Frooti Tooti 120ML” that featured text in the description stating “… features a sweet and sharp taste of lychee juice that tingles on your taste buds with each puff”, and “2x Nicotine Shots Included”.
b. The post on the Kick Ash Cleethorpes Facebook page, seen in February 2022, stated, “NEW ARRIVALS - Frooti Tooti Sub Tropics range now in stock! A huge selection of exotic flavours that are sure to transport you back to a holiday destination! Lychee Rubicana, Guava Rubicana, Mango, Guava, Pineapple, Banana & Exotic Fruits, Mango, Passionfruit & Pomelo, Banana, Kiwi, Papaya & Coconut, Grape Gummies… Give them a try today, Available in store or online at Kickashvapes.co.uk”.
AG Barr plc challenged whether:
1. ad (a) breached the Code by directly or indirectly promoting unlicensed nicotine-containing e-liquids and their components in online media; and
2. ad (b) breached the Code by directly or indirectly promoting unlicensed nicotine-containing e-liquids and their components in online media.
1.& 2. Kick Ash Vapes Ltd stated that the majority of their descriptions of products came directly from the manufacturers or distributors. They said the Frooti Tooti shortfill products in ad (b) did not contain nicotine, and also that the flavours shown did not have a nicotine containing variant. Kick Ash Vapes Ltd said that the brand Frooti Tooti did manufacture a nicotine salt 10ML E-liquid that had a different range of flavours, but they did not stock those in their store. They also said that since being informed of the complaint they had removed ad (a) from their website and ad (b) from their social media platform, and had ceased to stock those specific products.
Meta said they had policies to ensure that regulated goods such as tobacco and vaping products were not eligible for recommendations on Facebook. However, whilst such goods were not eligible for recommendations, they said there were ways in which content could be visible to users not following a specific page on Facebook, such as the Kick Ash Vapes’ business page. They said that, for example, connected content, which could include content shared or liked by a friend, could appear on the newsfeed of a user who did not follow the page in question.
We firstly considered whether ad (a) on the advertiser’s website directly promoted nicotine-containing e-liquids and their components. We understood that the ad stated the product had “2x Nicotine Shots Included” in the product listings for both the guava and lychee flavours, and noted there did not appear to be an option to purchase those listed products without the nicotine shots. Therefore, we considered that the e-liquid products ‘as sold’ included components containing nicotine, and as such the ad directly promoted a nicotine-containing e-liquid.
When considering whether the claims in ad (a) were promotional in nature, we understood that it was acceptable for marketers to include simple descriptions of product flavours. However, we considered that the statements, “… a sweet and sharp taste of energising guava that fills your mouth with fruity juice in combination with fizzy sparks you must try a truly tropical vape juice!” and, “… a sweet and sharp taste of lychee juice that tingles on your taste buds with each puff” went further than simple factual claims and constituted descriptive, promotional language that was not permitted under the Code.
Ad (a) also featured an image of the product. We considered that the product’s name and packaging reflected what was contained within the product and we did not consider the image used in the ad to be promotional in nature.
Because we considered that ad (a), which contained claims that were promotional in nature, directly promoted unlicensed nicotine-containing e-liquids in unpermitted online media, we concluded the ad breached the CAP Code.
On that point, the ad breached CAP Code (Edition 12) rule 22. 12 (Electronic cigarettes).
Ad (b) was posted on the Kick Ash Cleethorpes public Facebook page and was distributed by appearing within the newsfeed of Facebook users who had ‘followed’ that account. The ad included an image of six shortfill products from the “Frooti Tooti” sub-tropics range, containing the six referenced flavours. Whilst we understood that those particular products did not contain nicotine, the Facebook post directed consumers to purchase them at the Kick Ash Vapes website, where they were sold with “2x Nicotine Shots Included”, as per ad (a). Therefore we considered that ad (b) also featured e-liquids that were sold with components containing nicotine and given that, the ad indirectly promoted nicotine-containing products.
Rule 22. 12 allowed for factual claims to be made about products containing nicotine on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control. The rule specified a particular exception that the provision of factual-only information was not prohibited on retailer’s own websites. The basis of the exception to the rule was because consumers had to specifically seek out that factual information by visiting the website, as set out in CAP guidance on “Electronic cigarette advertising prohibitions”. It also 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 analogous to a website and able to make factual claims if it could only be found by those actively seeking it.
We therefore considered whether Facebook was an online media space where advertising with factual claims about products containing nicotine was permitted due to being analogous to the retailer’s website. We understood that the ad on the Kick Ash Vapes public Facebook page would have primarily been seen by users who had followed their account, and Facebook also had policies and mechanisms in place to ensure that goods such as tobacco and vaping products would not appear as a ‘recommended’ post to Facebook users. We understood that recommended posts were posts from pages which a user may not follow, but had been selected algorithmically to appear in that user's Facebook newsfeed. We noted that posts about tobacco and vaping products should be prevented from appearing in the newsfeed of users who did not follow that brand's Facebook page.
However, we understood there were other ways in which posts could be visible to users who were not following a public page on Facebook, such as through connected content, which was content shared or liked by a friend, which could appear on the newsfeed of a user who did not follow that page. We therefore understood that it was possible for ad (b), the Facebook post, to be distributed beyond those users who had signed up to follow the Kick Ash Vapes account and opted to view that content. We consequently considered that such a mechanism on Facebook was not equivalent to content that could only be found by those actively seeking out such information, as per the above basis of the exception to rule 22 .12. As a result we considered that content distributed on a public Facebook account was not analogous to a retailer’s own website. It was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that neither promotional nor factual content was permitted.
Notwithstanding that, we considered that ad (b) featured claims that were promotional in nature, due to phrasing such as “NEW ARRIVALS - Frooti Tooti Sub Tropics range now in stock! A huge selection of exotic flavours that are sure to transport you back to a holiday destination!” and “Give them a try today”. We considered that such language went beyond objective, factual descriptions of the product and that those claims were promotional in character.
We considered that content distributed from the advertiser’s public Facebook account was not analogous to the retailer’s website. Neither promotional nor factual content, therefore, that promoted nicotine-containing e-cigarettes was permitted in such online media. Given that, we concluded that ad (b) should not have appeared in that context on Facebook, which was therefore prohibited media space, and was in breach of the CAP Code.
On that point, the ad breached CAP Code (Edition 12) rule 22 .12 (Electronic cigarettes).
The ads must not appear again in the form complained about. We told Kick Ash Vapes Ltd 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, should not be made on their website or from a public Facebook 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.