ASA Greyhaze Ruling brings clarity on discount codes

Posted 16th January 2018 by Dave Junglist
At the end of December, the ASA passed judgement on an advert that was running on POTV from one of our long-term advertising partners, Greyhaze. Whilst the complaint was upheld and Greyhaze were told not to run this advert again, the overall decision brings some clarity to the murky waters of ecig advertising.

The advertising regulations that were introduced as part of the TPD / TRPR were disappointing to us when initially announced. POTV is a very simple publishing business, the content on POTV generates visitors who can gain support and advice about vaping - the costs to generate this content are footed by the advertisers and, in return, they get exposure to the visitors through adverts on the site.

The Committee of Advertising Practice (CAP) released their initial consultation regarding the advertising regulations in September 2016 and the final guidance was released in February 2017.  You can read the guidance “Guidance on electronic cigarette advertising prohibition” here https://www.asa.org.uk/resource/electronic-cigarette-advertising-prohibition.html.

The main points of interest for sites such as POTV, who want to host adverts and stay on the right side of the legislation, are these from page 9 of the guidance PDF:

Advertisements for businesses rather than products in non-broadcast media Mirroring the law, the CAP Code prohibits advertisements for specific products but CAP understands that the law does not go so far as to apply to ads for businesses where those ads do not directly or indirectly promote products.

CAP considers that in non-broadcast media there is limited scope for businesses engaged in the e-cigarette trade to advertise their existence in media subject to rule 22.12. However there is limited legal precedent to guide policy or enforcement decisions in this area. The ASA will need to consider individual cases.

CAP considers that marketers ads for businesses in media subject to the CAP rule are more likely, though not guaranteed, to be acceptable if they do all of the following:

  • only advertise the existence of that business rather than (nicotine) products;
  • comply with the guidance on “indirect effect” above. Ads which link directly to pages or sites where nicotine products can be bought, for example, are unlikely to be acceptable.
  • However CAP considers that there may be more scope for advertisements for businesses to provide direct response mechanics (URLs, contact details etc.), depending on the context and content of the ad and the content to which it links.

Such ads should also comply with all relevant CAP Code rules.

Our interpretation of this is that the regulations allow us to run adverts on our site which highlight general ecig retails where the link from the ad directs to an intermediary vendor profile page where further contact details could be found.

We were contacted on July 20th 2017 by the ASA, stating that they had received a complaint about the Greyhaze (https://greyhaze.co.uk/) advert on our site.  They wanted to understand what our relationship with Greyhaze was, and also how we work with advertisers.  We explained our relationship with Greyhaze as an advertiser and also that we believed that the ads on our site complied with the guidance that had been drawn up by CAP and published on the ASA site.

Greyhaze

Greyhaze are a vendor of ecig products.  Their name is not synonymous with a brand of nicotine-containing e-cigarettes or their components and therefore an ad for Greyhaze, when linked to an intermediary page, was not in contravention of the CAP guidance as far as we were concerned. 

The ASA contacted Trading Standards who visited Greyhaze’s premises and checked their stock to ensure that all products being sold had been notified.  This is mentioned in the ASA report “We noted that all of Grey Haze’s e-cigarettes and e-liquids had been notified to the MHRA before they were sold, as required by the TRPR.”

Taz, owner and director of Greyhaze stated “Greyhaze are proud to have supported the vaping industry in the UK since 2013 and we take great pride in working within the regulations that have been imposed on the UK market due to the TPD.  We were happy to work with Trading Standards to verify that our products complied with the new regulations and are happy to have been given a clean bill of health.”

The use of discount codes and banner adverts in the vaping industry

After three months, the ASA came back to us, asking us to clarify the discount code and whether it had the direct effect of promoting nicotine-containing e-cigarettes and their components and also how we believed that the ad did not directly promote nicotine-containing e-cigarettes.

It eventually appeared that the main issue that the ASA wanted to resolve, once they were assured that Greyhaze was a general vendor of ecig products, was the use of the discount code within the advert.

We have run discount codes freely until now, from our perspective these did not contravene the regulations as they were general discount codes and were not used to promote a specific product or brand of nicotine containing e-cigarettes or components.  The ASA, however, ruled that “We acknowledged that the focus of the ad was on the Grey Haze e-cigarette website rather than any specific product with no images of specific e-cigarettes or e-liquids. However, we understood the headline claim “10% off everything” applied to a number of unlicensed nicotine-containing e-liquids and e-cigarettes which could be used to consume nicotine-containing e-liquids. We therefore considered that the ad had the effect of promoting unlicensed nicotine-containing e-cigarettes and e-liquids, and concluded that it breached the Code.”

This is now clear to us – the use of discount codes, when applied to products that are caught by TRPR, are not allowed.  But this also means that discount codes to promote products that do not include unlicensed nicotine containing products or their components are allowed.  So all of market vendors who wish to run adverts on sites such as POTV are able to do so as long as the banners do not link directly to the site that is being promoted - and as long as any discount code is clear that it is not intended for use with products that are regulated by the TRPR.

We appreciate the clarity that this ruling brings and are now in the process of contacting all of our advertisers to make sure that where discount codes are offered in adverts that the text “This discount code not to be used for the purchase of unlicensed nicotine containing products or their components.”

You can read the full text of the ASA ruling against Greyhaze here:
https://www.asa.org.uk/rulings/grey-haze-online-ltd-a17-389638.html

You can check out all of the discount codes from the vendors who post on POTV here:
https://www.planetofthevapes.co.uk/discount-codes

Obviously, all codes should not be used in conjunction with unlicensed nicotine-containing e-cigarettes or their components.

 Dave Junglist
Article by Dave Junglist
I've been vaping since 2015, giving up a 27 year smoking habit at the age of 40. I believe every smoker can find the right set up to get them away from combustible cigarettes. Away from vaping I enjoy fiddling with computers, gardening and making jams and pickles.