Summary of Council decision:
Two issues were investigated, both of which were Upheld.
An Instagram story on Geordie Shore star Louis Shaw’s account, seen on 20 December 2021, showed a hand holding two boxes of e-cigarettes. Text stated “@RELXUK” and “GET YOUR OWN – RELAX WITH 15% OFF – LOUISXMAS15”.
1. The complainant challenged whether the ad did not make clear its commercial intent.
2. The ASA challenged whether the ad breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on Instagram.
1. & 2. Relx (UK) Ltd (Relx) said the Instagram story was user-generated content, designed and posted by Louis Shaw and not shared with or approved by Relx before he posted it. They said the discount code used in the ad was a referral reward that was given to any customer and was given to Mr Shaw to share with his online and offline friends who were existing adult smokers and vapers. Mr Shaw then used it in his Instagram story to reach more of his friends. The use of the code did not result in any payment or commission from Relx to Mr Shaw.
Louis Shaw said the issues would not arise again.
The CAP Code stated that marketing communications must be obviously identifiable as such and they must make clear their commercial content if it was not obvious from the context.
The ASA first assessed whether or not the story was a marketing communication and if it fell within the remit of the CAP Code. Although we noted Relx said there was no payment to Louis Shaw and that the code was given to him to refer friends, both online and offline, it remained the case that the ad featured a discount code. As Louis Shaw had shared it with his followers, of which there were many, it would follow that they would be likely to use that discount to purchase products from the brand, which would benefit financially.
We also noted that Relx ran an affiliate programme and understood that Louis Shaw would have been gifted the product. As an affiliate, Mr Shaw had a contractual relationship with Relx, and stories posted under that relationship fell within the remit of the CAP Code. We considered Relx and Louis Shaw were therefore jointly responsible for ensuring marketing activity conducted on Mr Shaw’s account promoting Relx was compliant with the CAP Code.
We next considered whether the story was obviously identifiable as a marketing communication and made clear its commercial content. We noted that the story had appeared in Louis Shaw’s own account. As noted above, there was commercial intent behind the story. Although some followers might associate the inclusion of a discount code with advertising, there was no clear statement that the story was a marketing communication. We welcomed the assurances from both Relx and Mr Shaw that similar stories in future would include a label such as #ad. Nevertheless, we concluded that the commercial intent behind the story was not made clear upfront and that it was not obviously identifiable as a marketing communication; it therefore breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.1 2.1 Marketing communications must be obviously identifiable as such. and 2.3 2.3 Marketing communications must not falsely claim or imply that the marketer is acting as a consumer or for purposes outside its trade, business, craft or profession; marketing communications must make clear their commercial intent, if that is not obvious from the context. (Recognition of marketing communications).
Notwithstanding the need for ads to be obviously identifiable as such, more fundamentally CAP Code rule 22 .12 reflected a legislative ban contained in the Tobacco and Related Products Regulations 2.1 2.1 Marketing communications must be obviously identifiable as such. (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. The rule stated that, except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that were not licensed as medicines were not permitted in newspapers, magazines and periodicals, or in online media and some other forms of electronic media. It further stated that factual claims about products were permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control.
We had previously considered whether Instagram was an online media space where such advertising, using factual claims only, was permitted, but had concluded that neither promotional nor factual content was permitted in that online space.
The ad featured prominently an image of two packages containing unlicensed e-cigarettes with the brand name RELX and the text “This product contains nicotine which is a highly addictive substance” shown on each of them, as well as a 15% discount code for the product, which we considered was clearly promotional. We considered therefore that the ad contained promotional and factual content for the products.
Because the ad had the direct or indirect effect of promoting e-cigarettes which were not licensed as medicines in non-permitted media, we concluded that it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22 .12 (Electronic cigarettes).
The ad must not appear again in the form complained of. We told Relx (UK) Ltd and Louis Shaw to ensure that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that were not licensed medicines should not be made from a public Instagram 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. We also told them to ensure they made clear the commercial intent of their posts in future, for example by including a clear and prominent identifier such as “#ad”.