A post on Yoo Delivery Company Ltd’s Facebook page, seen on 23 October 2020, included the text “LATE NIGHT Special Delivery MCDONALD’S & CIGARETTE 10PM TO 3AM REDHILL to GAWTICK DELIVERY FEE FROM £4.99” and an image of a burger alongside two cigarettes. A phone number and app downloading details were also provided.
IssueOne complainant challenged whether the ad breached the Code because it promoted tobacco products.
ResponseYoo Delivery Company Ltd did not respond to the ASA’s enquiries.
The ASA noted that the advertiser’s website was registered to a postal address, which we contacted. However, we did not receive a response. We were concerned by Yoo Delivery’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in future.
The CAP Code reflected the statutory prohibition on the advertising of tobacco products. Under the Tobacco Advertising and Promotion Act 2002 (TAPA), advertisements where the purpose, or one of the purposes, or effect of which was to promote a tobacco product were prohibited, subject to certain exceptions as set out in TAPA and related regulations. The ad featured an image of a burger and two cigarettes alongside the text “LATE NIGHT Special Delivery MCDONALD’S & CIGARETTE 10PM TO 3AM REDHILL to GATWICK DELIVERY FEE FROM £4.99”. We considered that the ad promoted cigarettes as a type of product that could be obtained via the advertiser’s delivery service. We noted that TAPA and the related regulations set out certain exclusions from the prohibitions, for example: some tobacco content was permitted where tobacco products were offered for sale or where the content and context might be considered as a response to a consumer’s specific request for information about a tobacco product.
We understood that Yoo Delivery’s services could be accessed through an app or their website, and connected users with third-party providers of collection and delivery services, to engage the services of a driver for the collection or delivery of items, such as groceries, takeaway food and drinks. We therefore understood that Yoo Delivery did not directly sell cigarettes via their website or app. We did not consider that a post advertising Yoo Delivery’s services on their Facebook page, which was in any case likely to attract an audience beyond those seeking the delivery of tobacco products, constituted a response to a consumer’s request for information. Because the ad promoted cigarettes, a tobacco product, and did not fall within the exclusions of the relevant legislation, we concluded that the ad breached the Code.
The ad breached CAP Code (Edition 12) rule 21.1 21.1 Tobacco products may not be advertised to the public. (Tobacco products).
The ad must not appear again in the form complained of. We told Yoo Delivery Company Ltd to ensure that future ads for their delivery service did not advertise cigarettes, for example, by removing the images of cigarettes and claims about the delivery of cigarettes. We referred the matter to CAP’s Compliance Team.