Summary of Council decision:
Three issues were investigated, of which one was Upheld and two were Not upheld.
On 12 June 2013 the Medicines and Healthcare Products Regulatory Agency (MHRA) announced that, following a public consultation on how to regulate nicotine-containing products (NCPs) such as electronic cigarettes (e-cigarettes), all NCPs were to be regulated as medicines. The UK government will press for EU law to create a Europe-wide legal position on NCPs as medicines. The European Commission has said it expects the new legislation to be adopted in 2013 and for it to come into effect in the UK from 2016, at which point NCPs will require a medicine licence. Until that time, e-cigarettes which make no medicinal claims will continue to be regulated as consumer products in the UK.
The following adjudication relates to an ad broadcast prior to the MHRA's announcement.
A TV ad for e-cigarettes, viewed at around 7.15 pm, showed scenes of young adults undertaking various day-to-day activities. On-screen text during the ad stated "www.skystart.co.uk 0800 XXX XX XX" and "SKYSTART only available to those over 18yrs of age". A voice-over said, "Life is not about tomorrow nor is it about yesterday. Life is about the moment, the now. Whoever you are, whatever you do, life only asks you one question - who will you share it with? Skystart."
The ad was cleared by Clearcast with an 'ex-kids' restriction.
A viewer challenged whether the ad was:
1. misleading, because it encouraged viewers, and particularly young adults and children, to visit the website but did not make clear the characteristics of the product;
2. irresponsible and harmful, because it promoted a nicotine-based product when nicotine was an addictive substance; and
3. irresponsible and harmful, because they believed it could encourage young adults and children to take up smoking.
1. ZULU Ventures Ltd t/a Sky Cig (Sky Cig) did not respond on this point.
Clearcast said that although the product was a nicotine product, it was not a tobacco product and as such did not fall under the ban on the advertising of tobacco products in BCAP Code rule 10.1.3. However they understood, because the product was called an 'electronic cigarette', was visually strongly reminiscent of a cigarette and came in packaging which resembled a cigarette pack, that under the requirements of BCAP Code rule 10.4 ads for the product could not show the product or its packaging, use the words 'electronic cigarette' or 'e-cigarette', or mention the advertiser's trading name 'Sky Cig'. They considered the ad could not, therefore, feature the product or make its characteristics clear. They felt the product name 'Skystart' did not make or imply a reference to smoking or tobacco products and therefore could be used in the ad. Clearcast said that whilst the ad featured Sky Cig's website URL, it did not actively encourage viewers to visit the website, for example by stating "Find out more at ...". They considered that not making the brand name or characteristics of the product clear was not misleading.
2. Sky Cig said their product met the requirements of all EC health directives, and its ingredients met the guideline safety requirements of a range of other organisations. They said that, in addition, the product included additional safety measures to help control misuse of the product, including an 'inhale control' feature which would cause the e-cigarette to cut out for 15 minutes if users dragged on it for over five seconds. They said they would advocate including on-screen text stating "E-cig aware" or "Use responsibly", and making clear that the product was an e-cigarette in future ads, for the avoidance of any doubt.
Clearcast said e-cigarettes were a controversial product but they were legal and, unlike tobacco cigarettes, had not been proven to be harmful. They considered that refusing all advertising for e-cigarettes on the grounds of social responsibility or harm would be imposing restrictions which went beyond the requirements laid out in the BCAP Code.
3. Sky Cig said the on-screen text "SKYSTART only available to those over 18yrs of age" clearly indicated that the product was only for those over the age of 18. They said they had ensured that the ad featured adults of a range of ages, with the average age of those featured being 27. They considered that to avoid any confusion in future as to whether the ad encouraged smoking in any age group, the ad might benefit from clearly stating what the product was ‒ an e-cigarette.
Clearcast said that, although there might arguably be a potential association between the use of e-cigarettes and the use of tobacco cigarettes, they considered the ad did not encourage such a link; the ad did not feature cigarettes or e-cigarettes. They said BCAP Code rule 10.4 seemed designed to discourage the promotion of tobacco products by proxy, and they considered the ad complied with that rule by not featuring anything which referred to smoking.
With regard to whether the ad would specifically encourage young adults or children to take up smoking, Clearcast said they had worked with the advertiser to avoid that possibility, and to avoid creating an ad which would have a strong appeal to young people. They highlighted that the ad included on-screen text which made clear that the product was only available to those over the age of 18, which made clear that it was not for children. They emphasised that the ad only featured people over the age of 18 and that they had applied an ex-kids restriction in the same way they would for other products which were not suitable for children.
The ASA noted the ad featured young adults undertaking day-to-day activities such as travelling and socialising, and featured an understated voice-over and chill-out style music. We considered the ad would not, therefore, be of particular appeal to younger children. Furthermore, we noted Clearcast had given the ad an 'ex-kids' restriction, which meant that it would not be broadcast around programmes of particular appeal to children.
Notwithstanding that, we noted the ad did not identify the type of product being promoted and considered that was material information which was necessary for viewers if they wished to find out more. We therefore considered that inquisitive consumers, including older children, could have been attracted by the statement "Life is not about tomorrow nor is it about yesterday. Life is about the moment, the now. Whoever you are, whatever you do, life only asks you one question - who will you share it with?" and were likely to have visited the website listed during the ad, thus resulting in an action that many would not otherwise have taken if they were aware of the nature of the product being advertised.
We noted Clearcast had understood that references to the type of product (e-cigarettes), or the product name, were prohibited by the BCAP Code and that it was for that reason they omitted that information from the ad. However, we understood that the BCAP Code rule only required that ads for non-tobacco products, such as e-cigarettes, did not reference or promote smoking or tobacco and did not include a "design, colour, imagery, logo style or the like that might be associated in the audience's mind with a tobacco product". However, we considered the Code did not prevent an ad containing verbal or text references to an 'e-cig', 'e-cigarette', or 'vaporiser'; or information indicating that the product contained nicotine, providing that it did not also create a link between the product and smoking or tobacco products. We considered it important that ads such as this made clear the nature of the product being advertised and stated whether or not it contained nicotine. We judged that to be material information the consumer needed to know in order to avoid the likelihood of being misled. Because the ad did not make clear the nature of the product being advertised and did not state that it contained nicotine, we concluded the ad was misleading.
On this point, the ad breached BCAP Code rules
Advertisements must not materially mislead or be likely to do so.
Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means. (Misleading advertising).
2. Not upheld
We noted the MHRA confirmed in June 2013 that the government would regulate e-cigarettes and other nicotine-containing products (NCPs) as medicines. We noted the product advertised contained nicotine, a pharmacologically active agent, the presence of which in other circumstances might render a product medicinal, which would require it to hold a medicines licence. We noted that in 2011, prior to their final determination on the matter, the MHRA had not removed such products from the market whilst marketers went through the process of obtaining the required licences, owing to the potential public health benefits. We therefore understood that such products could continue to be advertised providing they adhered to the CAP and BCAP Codes.
We considered that, because nicotine products were legal and were not a prohibited category under the advertising Codes (unlike tobacco products), the advertising of those products would not automatically be found to be harmful, providing they were advertised in a socially responsible way. Furthermore, we noted the ad neither glamourised the nicotine product nor encouraged excessive or inappropriate use. We therefore considered that the content of the ad did not encourage the harmful use of a nicotine product. We concluded the ad was not socially irresponsible or harmful.
On this point, we investigated the ad under BCAP Code rule 1.2 1.2 Advertisements must be prepared with a sense of responsibility to the audience and to society. (Social responsibility), but did not find it in breach.
3. Not upheld
We considered, as previously referenced, that inquisitive consumers (including young adults and older children) might be encouraged to visit Sky Cig's website to find out more about the product being advertised. However, we considered that because the ad did not include any reference to tobacco products it did not encourage people of any age, including young adults and children, to start smoking tobacco cigarettes. We concluded the ad was not irresponsible or harmful in that regard.
On this point, we investigated the ad under BCAP Code rules 1.2 1.2 Advertisements must be prepared with a sense of responsibility to the audience and to society. (Social responsibility), 4.1 4.1 Advertisements must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18. and 4.4 4.4 Advertisements must not include material that is likely to condone or encourage behaviour that prejudices health or safety. (Harm and offence), 5.3 5.3 Advertisements must not condone or encourage practices that are detrimental to children's health. (Children), and 10.3 10.3 Advertisements must not promote smoking or the use of tobacco products. (Tobacco), but did not find it in breach.
The ad must not appear again in its current form. We told Sky Cigs to ensure their future advertising clearly identified that their product was an e-cigarette and that it contained nicotine.