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Home Rulings TWISP E-CIGARETTE / A BROWN & OTHERS / 2017-6455F

TWISP E-CIGARETTE / A BROWN & OTHERS / 2017-6455F

Consumer complaints were lodged against Twisp e- Cigarette television commercials that were flighted on Etv and DStv channels. 

The commercials show people smoking e-cigarette and blowing out colourful hot air balloons, butterflies art and fireworks.

COMPLAINT

In essence, the complainants submitted that the smoking e-cigarette is unhealthy and the children seeing the commercials will think smoking is cool. Some Complainants argued that smoking is harmful and children should not be subjected to this behaviour. 

Some Complainants raised the issue of legality but there were no reasons advanced as to why they allege that the advertising is illegal.

RELEVANT CLAUSE OF THE CODE OF ADVERTISING PRACTICE

In light of the complaints the following clauses of the Code were taking into consideration:

  • Section II, Clause 3.3 – Legality
  • Section II, Clause13 - Safety
  • Section II, Clause 14 – Children



RESPONSE

Claasens & Associates Attorneys responded on behalf of the Respondent.

It argued that its products are not tobacco products as defined in the Tobacco Products Control Act 83 of 1993 (as amended) and as such not subject to the advertising limitations. The ASA has on multiple occasions admitted that it has no jurisdiction over non-members. For example, in the matter of Herbex (Pty) Ltd v The Advertising Standards Authority [2016] (14 / 45714) (25 April 2016) (ZAPGPJHC) the ASASA acknowledged that it has no jurisdiction over non-members and that its rulings are not binding on them. In the Herbex ruling it was declared that ASA may not in the absence of submission to jurisdiction require non-members to participate in its processes or issue any instruction, order or ruling against the non-member.

It submitted further that in the ruling of the Advertising Industry Tribunal (AIT) in the matter of British American Tobacco / African Gold Pipe Tobacco / 2015-2816F (4 October 2016) it stated that "The Tribunal is therefore in agreement with the Herbex judgment, which states that ASA’s own articles, properly constructed, do not permit it to regulate the conduct of non-members in the absence of their agreement to be so regulated.” 

The Respondent argued that not a member of ASASA and does not consent to the jurisdiction of ASASA to investigate and/or issue any instruction, ruling or order relating to the alleged complaint. It is also not bound to ASASA views, objections, rulings or jurisdiction; and does not consent to any reference to its business by ASASA in any ASASA material relating to the alleged complaint or otherwise.

It is notwithstanding the aforesaid important to note that the alleged infringing advertisement is no longer flighted on and furthermore that it questions the bona fide intentions of some of the complainants which are linked with anti-smoking/vaping/nicotine/tobacco action and/or lobbying groups. 

It submitted that the aforesaid comments are made without derogating or waiver of its position that it does not consent to any reference to its business by the ASA in any ASA material relating to the alleged complaint or otherwise and as such does not and cannot be construed as any direct or indirect consent to ASA jurisdiction which remains denied. 

ASA DIRECTORATE RULING

The ASA Directorate considered the relevant documentation submitted by the respective parties.

Jurisdiction

In The Advertising Standards Authority v Herbex (Pty) Ltd (902/16) [2017] ZASCA 132 the Supreme Court of Appeal found, inter alia, that:

1.1 the Advertising Standards Authority of South Africa (the ASA) has no jurisdiction over any person or entity who is not a member of the ASA and that the ASA may not, in the absence of a submission to its jurisdiction, require non-members to participate in its processes, issue any instruction, order or ruling against the non-member or sanction it;
1.2 the ASA may consider and issue a ruling to its members (which is not binding on non-members) on any advertisement regardless of by whom it is published to determine, on behalf of its members, whether its members should accept any advertisement before it is published or should withdraw any advertisement if it has been published.

In addition, section 55(1) of the Electronic Communications Act 36 of 2005 gives the ASA the authority to consider complaints in respect of any advertisement broadcast by a broadcast service licensee.  

The ASA will therefore proceed to consider this matter for the guidance of its members.

Merits

The Complainants essentially raised three issues regarding the e-cigarette, namely,

- health risks associated with smoking e-cigarette;

- whether the e-cigarette advertising is allowed or legal;

- promotes smoking habits in children.

At the outset it must be noted that the ASA is not able to rule on the legality (or not) of products such as these. The appropriate regulatory authorities (presumably the Department of Health and / or Medicines Control Council) are entrusted with the duty of ensuring that South African citizens are not exposed to dangerous products. The ASA is only able to consider whether the advertising claims are within the boundaries of the Code of Advertising Practice.

There were no sufficient reasons advanced why they believe that the advertising of the product is illegal. In 2009, the South African Pharmacy Council resolved that it would not endorse the sale of e-cigarettes and referred the matter to the Medicines Control Council (MCC) to determine whether the sale of electronic cigarettes is regulated under medicine control. To the best of the Directorate’s knowledge, no legislation has yet been passed with respect to e-cigarettes.

Therefore, the issue of legality will not be considered at this time.

The question then arises as to whether the commercial is in breach of Clauses 13 and 14, the former relating generally to safety and the latter to the safety of children.

In considering this matter, the ASA is mindful of the Respondent’s previous campaigns claiming that its products are 95% safer than cigarettes. It is also mindful of the following:
  • The commercial states, "Not for sale to persons under 18”;
  • The Respondent’s website requires a declaration that one is over 18 to enter;
  • The website also says, "It’s the safer alternative without the harmful effects of burning tobacco, smoke, tar and carbon monoxide.”
The Directorate’s understanding, on the material before it and on public resources is that vaping is safer than cigarette smoking but still has considerable health dangers associated therewith. The Respondent’s own material appears to bear this out.

Clause 13 of Section II states that advertisements "should not without reason, justifiable on educational or social grounds, contain any visual presentation or any description of dangerous practices or of situations which show a disregard for safety. Special care should be taken in advertisements directed towards depicting children or young people”.

The commercial at hand is a series of images of people vaping and exhaling butterflies, art, hot air balloons and fireworks. The people are all young and beautiful, and appear "cool” and happy. 

It is the Directorate’s opinion that vaping is glamorised, without any indication that it is not healthy. In addition, the commercial encourages new users to vape, as opposed to promoting vaping as a better alternative to smoking.

Based on the above, the commercial is in contravention of Clauses 13 of Section II of the Code. 

In light of the above finding, the members of the ASA are advised not to accept the advertising in its current format with immediate effect.

It is unnecessary to consider Clause 14 of Section II at this time.

The complaints are partially upheld.   


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