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  • Writer's pictureRosie Burbidge

When are advert claims factual descriptions?


A recent social media post for Elf Bar, an electronic cigarette brand, on Discord offering a 5% discount was an advert and must not appear again, according to a recent ruling from the Advertising Standards Authority (ASA) .


Under the Committees of Advertising Practice (CAP) Code, marketing communications promoting nicotine-containing e-cigarettes which are not licensed as medicines are banned unless they are targeted exclusively to the trade. However, there is an exception for factual information which could include posts on social media channels such as Discord.


Ruling

The ASA found that the post was on Elf Bar’s EB Planet server, which was accessible by invitation only and could not be shared with other users on Discord. It stated:


Because the content in the EB Planet server could only be found by those actively seeking it, we considered Elf Bar’s server on Discord was a non-paid-for online space under the marketer’s control which was analogous to Elf Bar’s website. Therefore, we considered that factual claims about nicotine-containing e-cigarettes and their components were permitted in that space.”

However, the post did not just include factual claims but also mentioned a 5% discount, which was an incentive to purchase Elf Bar products. The ASA therefore considered that the advert had the direct effect of promoting nicotine-containing e-cigarette products which were not licensed as medicines:


Because promotional claims for nicotine-containing e-cigarettes were not permitted in online media, we concluded the ad breached the Code. We welcomed Elf Bar’s assurance that they had removed the ad.”

As Elf Bar had already removed the ad, it does not need to take further action.


What does this mean?

There is arguably a fine line between factual posts and adverts on social media sites such as Discord. The ASA ruling makes it clear that there is no restriction on posting factual information about restricted products such as e-cigarettes, but the inclusion of a promotion (in this case, a targeted discount) turns the post into an advert, which breached rule 22.12 of the CAP Code.


Any businesses who post material or host discussion groups on social media need to consider this distinction. The Code governs many products and services, including alcohol, gambling, food, financial products, medicines, promotional marketing and political advertisements.


There is significant cross over between the lands of advertising and intellectual property. Not least because breaches of the CAP code can have a significant reputational impact on a brand and erode the value of this key intangible asset.


If you need further advice on advertising rules or best practice on social media sites, please contact us.


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com


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