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Advertiser: Vape Business Ireland
Medium: Press, Social Media (Twitter)
ASAI Code 7th Edition: 2.4(c), 4.1, 4.4, 4.9, 4.10, 4.12, 4.13, 11.10, 11.12, 11.21, 17.5, 17.7, 17.9
The advertisers’ tweet stated the following:
“#TobaccoFreeIreland is stuck at 18%. Vaping has the potential to play its part in helping that remaining 13% to quit. Take the #VApril Vaping Challenge, visit vapebusinessireland.ie for more @roinnslainte @HSEQuitteam
37% OF IRISH QUITTERS USED
VAPING PRODUCTS LAST YEAR
TAKE THE VAPING CHALLENGE.”
The complainants said that the advertiser’s twitter account had a tweet which referred to using vaping to quit smoking in Ireland. The complainants stated that no e-cigarettes are licensed by the HPRA for smoking cessation and quoted the HPRA ‘Guide to the definition of a human medicine’ as follows (1):
‘6.12 Electronic cigarettes
Electronic cigarettes are battery powered devices designed to be used in the same way as real cigarettes. They contain either a refill chamber, tank or a disposable cartridge chamber designed to hold a nicotine-containing liquid. The liquid feeds to an atomiser and a sensor activates a heating element within the atomiser causing the nicotine to be vaporised so that it is available for inhalation via a mouthpiece. The HPRA, in common with other EU countries, considers that such products are nicotine delivery systems and where such nicotine-containing liquids or prefilled cartridges are claimed to be used in or assist in smoking cessation, they are regarded as medicinal products and subject to medicines legislation. In this regard they are considered to be the same as other nicotine replacement therapies (NRT) and therefore require a marketing authorisation before being placed on the market in Ireland’.
The complainants stated that smoking cessation was a medicinal claim and therefore the claim on Twitter was in breach of Clause 17.5 of the Code.
The advertisers stated that their organisation was a trade association that represented manufacturers, distributors and sellers of vaping products in Ireland. They did not agree that the tweet in question was in violation of the ASAI Code.
They stated that they were a trade association that represented their members equally, without special bias to any specific products.
The advertisers stated that they did not sell or market any particular products nor advertise or promote specific products which were marketed directly by their members. Instead, the advertisers put forward the collective interests of the industry and took a neutral stance to specific products or brands. Accordingly, their public information campaigns or other communications did not name or relate whatsoever to specific products.
In their view, the allegation that they made a medicinal claim about vaping products was
unfounded and based on a misunderstanding of the communications in question, the ASAI Code and the law upon which the Code was based. This was because: (i) the communications did not make health or medicinal claims about identifiable products; and (ii) in any event, neither the law nor the ASAI Code were intended to restrict non- promotional communications that comment on an issue of public concern.
The advertisers stated that it was well-established that a health or medicinal product claim hinged upon there being an underlying and identifiable product and highlighting the qualities or characteristics of that product as having properties for treating or preventing disease (i.e., “promotion”). This did not apply to their communication and they believed that it was clear that no product promotion has taken place.
They stated that, crucially, the tweet in question did not have any relationship with any identifiable product or brand. They did not understand how in the eyes of the average consumer their communication amounted to product-specific promotion of any sort. They stated that,in fact, they did not restrict their comments to their members’ products per se: the statement they were making clearly referred to vaping in the generic sense and summarised those made in a HIQA report (2). The complainant’s reading of their communications would, if taken to its logical conclusion, mean that public health slogans would amount to promotional claims for individual brands, such as of apples or potatoes. This could not be correct and was certainly not the type of communication that the law was intended to restrict. The prohibition against making medicinal claims originated in EU law and specifically addressed the promotional presentation of products (i.e., “substances or combinations of substances”), which had nothing to do with the communication in question.
The advertisers said that the complainant’s allegations that the communications made smoking-cessation claims made little sense. They said that statements they had made on Twitter simply summarised statistics found in HIQA’s reports.
Those statistics clearly related to smokers using vaping as part of their attempts to quit, as an alternative nicotine source. They maintained that the complainant would understand that smokers could use a wide variety of techniques in quitting, including using will power, counselling, exercise etc. These may be part of the process, but none were considered medicinal treatments for cessation: rather they were part of a pattern of lifestyle changes that helped smokers in their journey .
To point this out for vaping products was simply not a medicinal claim (i.e., a claim that a product has properties to prevent or treat a disease). It was inconceivable that readers would understand their communications in that way, since it was clear they were not saying that non-medicinal vaping products were a cessation treatment, but that more information should be made available to the public about their use. The two were fundamentally different concepts.
The advertisers believed the average reader would take their comments at face-value, namely to encourage the HSE and the Department of Health to provide information on vaping for Irish adult smokers through their stop smoking services such as Quit.ie . The aim of their communications was to address the fact that information on vaping was not being made available to consumers.
In their view, it was fundamental that trade associations should be able to comment on key issues of public interest or concern. Advertising rules were not designed or intended to infringe upon this right: they operated on a different level and related to marketing communications whose aim was to attract consumers to particular offerings.
The advertisers stated that the ASAI Code clearly reflected this distinction: Rule 2.3(f) provides that:
“[The Code does not apply to…] Marketing communications whose principal purpose is to express the advertiser’s position on a political, religious, industrial relations, social or aesthetic matter or on an issue of public interest or concern”.
The advertisers added that, in other words, the ASAI Code was clearly not intended to silence engaging in a public debate. The only aim of their Twitter communication was to make a policy-related statement on why public health authorities did not provide information about vaping products in their communications about smoking cessation. Such communications clearly fell within the remit of Rule 2.3(f). and neither the complainant nor the ASAI had set out why that rule does not apply in this case, particularly in the absence of any relationship with an identifiable product and any promotional claims.
In summary, the advertisers’ VApril campaign aimed to spread awareness about vaping, and to encourage the Department of Health and the HSE to provide information on vaping to Irish adult smokers. The campaign was not designed to advertise any vaping products, and no tweets sent from the advertisers’ Twitter account contained any links for consumers to purchase any vaping products.
(2) Health Information and Quality Authority (HIQA) is an independent authority established to drive high-quality and safe care for people using our health and social care services in Ireland. Source: www.hiqa.ie/about-us
(3) The advertisers wished wish to point out that the Tobacco Products Directive (Directive 2014/40/EU) provided that e-cigarettes should be regulated as medicines when the nicotine strength was greater than 20mg/ml. There was a presumption that products below that level were not medicinal in their own right.
The Complaints Committee considered the detail of the complaint and the advertisers’ response. They noted the advertisers’ commentary that their campaign was aimed to spread awareness and to make a policy-related statement. The Committee noted that the Code defined a marketing communication as, amongst other things, any form of communication produced directly by, or on behalf of, advertisers intended primarily to promote products, to influence the behaviour of and/or to inform those to whom it is addressed. They noted that the advertisement included a call to action for the reader to undertake a challenge. The content therefore went beyond a principal purpose of expressing a position on matters such as an issue of public interest or concern. Accordingly, they considered that the featured content was within the Code definition of a marketing communication and within the remit of the Code.
The Committee noted the Code requirements to take into account the impression created by marketing communications as well as specific claims and to adjudicate on the basis of the likely effect on consumers, when taken as a whole or in context, not the advertiser’s intention (Section 3.5).
While the Committee noted that the marketing communication did not specify or promote an individual brand, the acts of vaping and undertaking the promoted challenge were inextricably linked with the use of a vaping product. Consumers could not participate in the promoted challenge without the use of a vaping product The Committee considered that the impression created by the marketing communication and its likely effect on consumers, when taken as a whole, was that of encouragement to engage in vaping in conjunction with the use of vaping products. They considered therefore that the tweet complained of was a marketing communication for vaping products.
The Committee noted that the content of the tweet related to smoking cessation and how vaping could ‘play its part in helping … to quit’. The Committee also noted that marketing communications should not contain health or medicinal claims unless the product was authorised for those purposes by the HPRA. In the absence of HPRA authorisation, the Committee considered that the advertisement was in breach of Section 17.5.
The advertisement must not reappear in its current form.