The single complaint fell under The Tobacco and Related Products Regulations section of The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing. As such, ASA considered POTV to be a publisher, and looked into whether the adverts breached the code.
At the top of the Discount Code page, POTV states: “The discount codes on this page are not to be used for the purchase of unlicensed nicotine containing products or their components.” This means that discounts can only be offered on products not falling under the remit of the Tobacco Products Directive (TPD).
Cotswold Vapour amended their discount code to state: “20% Off TPD Exempt Products”, and ASA considered that this resolved the matter without it having to be referred to the ASA Council and closed the file in August.
ASA decided to proceed with a formal investigation for the complaint in relation to CloudStix. By October, the organisation was still working on a draft recommendation in relation to the CloudStix advert and no further information was forthcoming.
Both parties had to wait until mid-November to discover that the formal investigation had considered all of the information and reported that it was recommending that the advert did not breach the Advertising Code. This was due to the fact that the discount code only functioned on CloudStix.com for non-TPD products. ASA tested the CloudStix site and found it was all in order and noted the disclaimer at the top of the POTV discount codes page.
The report was then passed to the ASA Council, and both parties were informed that it might “see things differently”.
This weekend, POTV was informed: “The ASA Council has now ruled and agreed with our recommendation that the advert did not breach the Code.”
ASA’s ruling stated: “The complainant challenged whether the ad promoted e-cigarettes and their products on online media, a medium in which promoting unlicensed nicotine-containing e-cigarettes and their components were prohibited, and therefore breached the Code.”
“CloudStix.com highlighted the qualification on the webpage, which stated that the discount codes on the page were not to be used for the purchase of unlicensed nicotine containing products or their components. They considered the ad did not promote such products, because the page clearly stated the opposite.”
ASA said CloudStix “had taken great efforts to ensure that any unlicensed nicotine containing products on their site, which required notification to the Medicines and Healthcare Products Regulatory Agency (MHRA), could not have the discount code in the ad applied to them. They said a filter algorithm limited which products or categories the code could be used on, and it would not apply to any products which fell under the Tobacco Products Directive.”
ASA also acknowledged that POTV “highlighted the qualification at the top of the discount codes webpage on which the ad appeared. They said the qualification meant they were actively telling visitors to their site that the codes were not to be used for purchasing unlicensed nicotine-containing e-cigarettes or their components.”
It noted: “Planet of the Vapes provided an email they had previously sent to all advertisers on their website which advised them to ensure the discount codes did not apply to unlicensed nicotine-containing e-cigarettes or their components. They said they were also very careful to ensure that the advertisers featured in ads on their website were only general vendors of products, and that their ads did not contain any images of unlicensed products.”
ASA’s council concluded: “Because the ad featured a qualification at the top of the page which indicated that the discount code could not be used on unlicensed nicotine-containing e-cigarettes or e-liquids, and because the discount code could not indeed be used on those products, we concluded that the ad did not have the direct or indirect effect of promoting them, and was therefore not in breach of the Code.”
Last month, ASA revised its position on health claim statements in vape advertising. The Committee of Advertising Practice and the Broadcasting Committee of Advertising Practice are currently amending the rules in their codes. ASA stated: “the evidence for the relative safety of e-cigarettes has improved, alongside a regulatory regime to set product standards. In light of these sector-wide changes, CAP and BCAP consider that an absolute prohibition on health claims in lawful ads for e-cigarettes can no longer be justified.”
Speaking for POTV, director and founder Toby Kilroy said he was “more than happy” with the outcome and thanked the ASA for its recommendations. He continued: “We are really pleased that you have taken the time to understand our point of view regarding the way that we have implemented discount codes on our site and the way that we are trying to work within the guidelines of the TPD and assist the vendors that we work with to ensure they do not break any of the advertising regulations that have been put in place.”
Toby added: “The outcome is good as it gives some clarity on the use of discount codes in the vaping industry, they are acceptable as long as it is clear that the code is not to be used with TPD caught products.”
Darren Sharples, a director and founder of CloudStix.com Ltd., said: “Having worked with Planet of the vapes for many years now, we are delighted that the ASA and the ASA council have recognised both Planet of the Vapes and CloudStix as upstanding entities within the vape industry that take promotion of vaping very seriously when it comes to working within the law and guidelines.”
“The work we’ve done to make our website watertight for all the regulations that now effect our industry has paid off. We are delighted the ASA chose to put cloudStix.com to the test - which passed without fail. My thanks go to our technical team, who implemented the safeguarding features demonstrated in this case well before they ever came to be called upon,” added Darren.
“We were shocked when we were first made aware that a complaint had been made regarding the discount code. The ruling is justice for our company which has a wonderful, longstanding reputation within the vape community, and has made many friends within the industry.”
“Finally, we would like to thank POTV for their support during this investigation. We would also like to thank the ASA for coming to a sensible conclusion. It has been a worrying time, but thankfully we can now all enjoy Christmas.”
To celebrate the outcome, CloudStix has increased the discount code from 5% to 10%. Why not treat yourself to a pre-Christmas celebratory gift by entering the code POTV03 at checkout.