Summary of Council decision:
Four issues were investigated, of which three were Upheld and one Upheld in part.
The website for Vype e-cigarettes www.govype.com, was seen on 13 March 2017. The home page of the website featured a carousel with four slides. Text on the first slide stated "VYPE PURPLE ePEN STARTER KIT +1 PACK OF PREMIUM CARTRIDGES. FOR £19.98*". Smaller text below stated "*ENDS TUESDAY 28th MARCH 2017. P&P CHARGES WHERE APPLICABLE". The text was next to images of the starter kit, and a link which stated "SHOP NOW>". Text on the fourth slide stated "BUY 5 GET 1 FREE. INCLUDES VYPE PEBBLE CARTRIDGES, ePEN CARTRIDGES & eLIQUID BOTTLES*. SHOP NOW>". On the web page for the Vype Pebble Starter Kit, text stated "The small and mighty Pebble". The web page also included an embedded video which was also on several other web pages on the website. The video featured two hands making numerous hand gestures in sync with modern electronic music. The advertised product appeared several times in the video in different colours. There were also several bursts of different colours which suddenly appeared on screen. Text towards the end of the video stated "SAY HELLO TO PEBBLE. THE SMALL & MIGHTY VAPING DEVICE" and "VAPING ROCKS". The video ended with the Vype logo and claim "Vaping made simple".
1. Johnson & Johnson Ltd, who understood that only factual content was permitted on marketers’ own websites for unlicensed nicotine containing e-cigarettes and their components, challenged whether the claim "small and mighty" was a promotional claim, and therefore in breach of the Code.
The ASA challenged whether the following content was also promotional, and therefore in breach of the Code:
2. the video for the Vype Pebble starter kit;
3. the claim "VYPE PURPLE ePEN STARTER KIT +1 PACK OF PREMIUM CARTRIDGES For £19.98*. *Ends Tuesday 28th March"; and
4. the claim "Buy 5 Get 1 Free".
1. Nicoventures Trading believed the phrase “small and mighty” was an objective, factual description and was not a promotional claim. They said that it was helpful to consider the characteristics of the product in light of those of more common pen-style e-cigarettes, such as their Vype ePen 2.
Nicoventures said that, in relation to the claim “small”, the product was half the length (75 mm) of Vype ePen 2 (148 mm) and significantly smaller than most pen-style e-cigarettes on the market, and was able to sit in the palm of the hand. In relation to the claim “mighty”, they said that the product was of equal power to ePen 2 in terms of wattage and voltage and had a higher volume liquid tank than ePen2 delivering over 50% more puffs per cartridge. They also said that the e-liquids were of a higher flavour intensity than ePen2. They considered that those characteristics accorded with the Shorter Oxford English Dictionary definition of “mighty” – “possessing might or power; potent, strong” and “the quality of being able (to do, etc.); operative power” – in the context of the claim. They said that the product was demonstrably small in size, and “able” in terms of operative power and performance bearing in mind its size. “[S]mall and mighty” was, therefore, an objective, factual description of the product.
2., 3. & 4. Nicoventures said that they had removed the claims and images from their website.
The ASA understood that rule 22. 12 of the CAP Code 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 only factual claims about unlicensed nicotine-containing e-cigarettes were permitted on marketer’s own websites, meaning that claims which were promotional in nature were prohibited.
1. Upheld in part
We noted that the ad included the claim “the small and mighty Pebble”. We considered that, in the context of the ad, the claim “small” was an objective term that described the size of the product. We therefore considered that it was factual rather than promotional in nature.
We noted that Nicoventures considered the claim “mighty” to be a factual claim that described what they perceived to be the product’s relatively significant operative power, high liquid volume capacity and its high flavour intensity. However, we considered that while it would have been acceptable for the website to describe those characteristics of the product, the claim “mighty” did not in itself provide information about those, or any other, specific characteristics of the product. We considered that the claim did not factually describe the product or its features, and was instead promotional in nature. We therefore concluded that the claim “mighty” breached the CAP Code, but the claim “small” was not in breach.
On that point, the claim “mighty” breached rule 22. 12 (Electronic cigarettes) of the CAP Code (Edition 12), but the claim “small” did not.
We noted that the video was highly stylised with modern electronic music in the background, with synchronised hand movements and bursts of colour. While the advertised product did feature in the video, we noted that the hand movements, the bursts of colour and the background music were unrelated to the product. The video also featured the claim “Vaping Rocks”, which we considered did not provide any factual, objective information about the product or its characteristics. We considered that the stylised nature of the video, the music, the unrelated significant imagery and the claim "Vaping Rocks" all went beyond the provision of factual information about the product, and instead served to make the product appear more attractive to consumers. We concluded that the video was promotional rather than factual in nature, and therefore in breach of the Code.
The claim "VYPE PURPLE ePEN STARTER KIT +1 PACK OF PREMIUM CARTRIDGES For £19.98*. *Ends Tuesday 28th March" appeared prominently on the Nicoventures website as a headline claim. We considered that the temporary savings claim was presented as more than just factual pricing information, and was instead presented as an incentive to purchasing the advertised products and served to make the products appear more attractive. As such, we concluded that the claim was promotional rather than factual in nature, and in breach of the Code.
The text on the fourth slide of the carousel featured the claim “BUY 5 GET 1 FREE”. The claim was in bold capital letters in the centre of the web page. We again considered that the presentation of the savings claim was more than just factual pricing information, and was instead presented as a direct incentive to purchasing the advertised products and to make the products appear more attractive. We therefore concluded that the claim “BUY 5 GET 1 FREE” was promotional rather than factual in nature, and in breach of the Code.
On points (2) - (4), the ad breached CAP Code (Edition 12) rule 22. 12 (Electronic cigarettes).
The ad must not appear again in its current form. We welcomed the amendments Nicoventures had already made to their website, and reminded them that when advertising unlicensed nicotine-containing e-cigarettes on their own website, not to use stylised videos, unrelated significant imagery or music. We also reminded them not to present information about pricing offers in a manner that went beyond the provision of factual information. We also told them not to use the claims “mighty” and “Vaping Rocks” on their website.