Following Gallaher's appeal to the ASA's independent reviewer in the wake of the ban, handed down in July last year, the ASA has reissued the ruling – but with the decision to ban the ad for being misleading unchanged.
The press ad, created by Big Al's Creative Emporium for Gallaher, received 13 complaints after it appeared in April 2013.
It featured an email written by the Department of Health to its Australian equivalent requesting evidence about the effectiveness of plain packaging, which Australia was introducing.
A line in the email read, "There isn't any hard evidence to show that it works". Below it the ad continued, "We couldn’t have put it better ourselves."
The likes of Cancer Research UK and the UK Centre for Tobacco Control Studies argued whether the email "misleadingly implied that, at the time the ad appeared, there existed no evidence to support the introduction of plain packaging".
The email predated research and the introduction of plain packaging in Australia.
However Gallaher pointed out that the date of the email appeared in the ad and the comment shown below it was written in the past tense.
It added that at the time the ad appeared it had been four months since plain packaging legislation came into force in Australia so it "would still have been true to state that there was no hard evidence".
The ASA adjudication said that as the particular line in the email was highlighted, the reader would be likely to "take only brief note of the full paragraph".
It also said there were several studies available on the issue at the time the ad appeared. This included a report by the Public Health Research Consortium, for which the ASA obtained an "expert opinion" and believed the conclusions were made in a "robust manner".
The research said plain packaging would reduce the appeal of tobacco products.
Some complainants also challenged whether the ad promoted a tobacco product, however this was not upheld because the ASA said the ad related to the debate of plain packaging for tobacco products.
It is understood that the independent review did not agree with the ASA's decision to ban the ad.
A spokeswoman for JTI, which owns Gallaher, said: "The unfairness of this decision is exposed by the choice of the ASA to follow the views of anti-smoking groups rather than the recommendation of the highly-respected ASA independent reviewer.
"JTI agrees with [the independent reviewer] that the ASA has got this wrong."
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