Nicoventures Trading Ltd is, for all intentions, British American Tobacco and the vaping products they produce are partially responsible for the declining sales of Johnson & Johnson’s nicotine replacement products, including the well known NICORETTE® brand. It is unsurprising that the pharma company is keen to do anything it takes to claw back at its rival.
According to the ASA: “The website for Vype e-cigarettes https://www.govype.com/uk/, was seen on 13 March 2017. The home page of the website featured a carousel with four slides. Text on the first slide stated ‘VYPE PURPLE ePEN STARTER KIT +1 PACK OF PREMIUM CARTRIDGES. FOR £19.98*’. Smaller text below stated ‘*ENDS TUESDAY 28th MARCH 2017. P&P CHARGES WHERE APPLICABLE’. The text was next to images of the starter kit, and a link which stated ‘SHOP NOW>’. Text on the fourth slide stated ‘BUY 5 GET 1 FREE. INCLUDES VYPE PEBBLE CARTRIDGES, ePEN CARTRIDGES & eLIQUID BOTTLES*. SHOP NOW>’.”
Johnson & Johnson whined that there should only be factual content on marketers’ websites (for unlicensed nicotine products). They asked the ASA to adjudicate whether the claim for Vype’s Pebble being "small and mighty" was a promotional claim.
The ASA then, having looked at the website, added the separate issues of a video for the Pebble, the starter kit promotion, and the promotion to buy 5 and get one free.
Johnson & Johnson’s original complaint was upheld in part: “We considered that the claim did not factually describe the product or its features, and was instead promotional in nature. We therefore concluded that the claim ‘mighty’ breached the CAP Code, but the claim ‘small’ was not in breach.”
The ASA did not like the video at all. “The video was highly stylised with modern electronic music in the background, with synchronised hand movements and bursts of colour,” they wrote. “While the advertised product did feature in the video.” The ASA also added that a statement such as “Vaping Rocks” does not provide any factual, objective information about the product or its characteristics.
The starter kit offer and the bulk purchase promotion were both slated for being “more than just factual pricing information.” The ASA stated, “the ad must not appear again in its current form. We welcomed the amendments Nicoventures had already made to their website, and reminded them that when advertising unlicensed nicotine-containing e-cigarettes on their own website, not to use stylised videos, unrelated significant imagery or music.”