ASA rules against brand for an ad it had never seen

The question

Are brands responsible for third-party advertising of their products, even when they never directly authorised (or had ever seen) those ads?

The key takeaway

Businesses are responsible for how their products are promoted, even in third-party paid ads which they didn't place or directly authorise. If the product features in a non-compliant ad (e.g. through affiliates, aggregators, resellers or marketplaces), the business can be held liable by the Advertising Standards Authority (ASA). Businesses must actively monitor and manage all promotional material linked to their products, not just those that they publish directly. This includes setting clear rules for partners and auditing how and where their products appear in ads.

The background

Under CAP Code Rule 22.12, nicotine-containing e-cigarettes are in many cases prohibited from being advertised in certain media. A paid-for Google search ad, seen in February 2024, promoted 'Elf Bar 4-in-1 Pods' – e-cigarettes containing nicotine sold by Golden Vape UK Ltd. The ad included pricing, product images, and a direct link to purchase, and appeared in general paid search results.

Golden Vape argued that they not only did not authorise or create the ad in question, but had in fact never even "run, approved or been involved in any advertising through Google or any other platform". Instead, the product had been listed on eBay, from which the ad had been auto-generated by a third-party aggregator site, Shoparade.uk.

The development

The ASA ruled that Golden Vape remained responsible for the ad on the basis that its product was promoted in breach of Rule 22.12 of the CAP Code. The ruling stated that advertisers must ensure their products are not promoted in a non-compliant manner, regardless of whether they directly manage the ad placement.

Shoparade.uk failed to respond to ASA inquiries and has been warned under Rule 1.7 of the CAP Code for undue delay.

The ASA ordered the ad to be withdrawn and referred both Golden Vape and Shoparade.uk to CAP’s Compliance team. This reflects a strategic move by the ASA to hold brands accountable for any non-compliant third-party advertising, even when placed without their direct input.

Why is this important?

This ruling makes clear that brands will be held responsible for how their products are advertised, even when third parties such as aggregators place ads without the brand’s direct involvement. It extends liability beyond a company’s own marketing efforts, meaning businesses must actively monitor and control how their products appear across affiliate networks, marketplaces, and other third-party platforms. The ASA’s firm stance makes it clear that lack of oversight is not a valid defence.

While the case concerns vape products, the implications apply broadly across industries with regulated products sold online, highlighting the need for brands to implement compliance strategies covering all promotional channels, so as to avoid regulatory penalties.

Any practical tips?

There are a number of steps businesses can take to ensure compliance, including:

• using AI to maintain an up-to-date list of the channels through which products might be advertised and to spot unauthorised or non-compliant ads quickly
• including strict advertising compliance clauses in agreements with partners, affiliates, and marketplaces, specifying allowed content and channels
• educating affiliates and sellers about the relevant advertising rules and brand policies
• having a clear process to take down or correct problematic ads immediately once identified
• staying up-to-date with advertising regulations, particularly those specific to a business's industry, and ensuring policies and contracts reflect and comply with these
• where possible, managing product listings on third-party platforms directly or work closely with them to enforce compliance
• keeping records of compliance efforts and communications with partners in case of regulatory scrutiny.