A poster for Nicolites electronic cigarettes. The headline claim stated "KICKS BUTT". Smaller text stated "THE UK'S FAVOURITE ELECTRONIC CIGARETTE. A SMOOTH, SATISFYING FLAVOUR THAT HITS THE SPOT!". The ad also featured an image of the product.
Two complainants challenged whether the ad was misleading, because it implied that the product could be used as a smoking cessation aid.
Nicocigs Ltd said the phrase "Kicks Butt" was not intended, and in their view did not imply, that the product could be used as a smoking cessation aid. They said the campaign was linked with their sponsorship arrangement with Birmingham City Football Club and the allusion to kicking related specifically to football, which was emphasised by the addition of the words "Hits the spot" ‒ a play on words that referenced the flavour of the product and a football being kicked and hitting the spot in the back of the net. As the campaign was local to Birmingham, Nicocigs felt this connection would be understood. They added that the play on the word "butt" was a well-used phrase in the context of football (to "kick someone's butt" on the field of play) and the obvious advantage of an electronic cigarette was that those using them do not leave butts on the ground, removing an unsightly and unpleasant litter nuisance.
They said "Kicks Butts" was not a phrase that suggested any medicinal benefit and therefore the product did not require, nor did it have, any MHRA marketing authorisation. In response to concerns from complainants about the similarity between "KICKS BUTT" and the quitting smoking campaign 'Kick Butt', Nicocigs said they had no knowledge of the Kick Butt campaign and did not intend to associate themselves with that project, nor did they expect that association to be made.
Nicocigs said if it was felt that additional wording explaining any aspect of their product would assist, they would be very willing to consider it.
The ASA noted that Nicocigs had a sponsorship arrangement with Birmingham City Football Club and we agreed that the phrases "kicks butt" and "hits the spot" could be associated with sport, and football in particular. While we considered Nicocigs’ assertion that the poster appeared in Birmingham and therefore this local connection would be recognized, we understood that one of the complainants had seen the ad in Liverpool. We also noted that the ad did not feature any sports or football imagery, nor was the association with Birmingham City Football Club specifically mentioned.
We noted Nicocigs' comment that people who used electronic cigarettes did not drop cigarette butts and we considered that the claim "KICKS BUTT" could be a reference to this. However, we also considered that the word 'kick' had connotations of quitting or beating an addiction, and was commonly used in phrases such as "kick the habit". We were concerned that, given the similarity between the phrase "KICKS BUTT" and the smoking prevention campaign "Kick Butt", consumers were likely to believe that the product was in some way associated with Kick Butt, and they therefore were likely to believe that the product was suitable for use as a smoking cessation device.
Because we considered the ad implied that consumers could use the product for smoking cessation and we understood that the product had not been licensed by the MHRA for that purpose, we concluded that the ad breached the Code in that regard.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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.
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease. and 12.11 12.11 Medicines must have a licence from the MHRA, VMD or under the auspices of the EMA before they are marketed. Marketing communications for medicines must conform with the licence and the product's summary of product characteristics. For the avoidance of doubt, by conforming with the product's indicated use, a marketing communication would not breach rule 12.2.
Marketing communications must not suggest that a product is "special" or "different" because it has been granted a licence by the MHRA, VMD or under the auspices of the EMA. (Medicines, medical devices, health and beauty products).
The ad must not appear again in its current form. We told Nicocigs Ltd not to imply that their product could be used as a smoking cessation aid in future advertising. We also advised them to seek CAP Copy Advice for their future advertising.