Why would vape brand Lost Mary want to move into food and drink categories?

Lost Mary says it has no immediate plans to launch in the categories, and that extending its brand protection is a “precautionary measure” to prevent anyone ‘riding on the coattails’ of its success.

It says there have been “instances in other markets” of companies seeking to trademark its name beyond vaping.

It’s easy to see why someone might want to, with the Lost Mary brand power promising “an easy free ride”, says Gareth Turner, founder at marketing consultancy Big Black Door.

It was the fastest-growing brand in The Grocer’s 2023 Top Products survey, with sales of £310.7m a year after launch [NIQ 52 w/e 9 September].

Its owner Imiracle (HK) Limited says sales of Lost Mary in the UK were up by 26% in summer 2023 compared with winter 2022/23.

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Turner says Lost Mary’s success comes down “the four Ps of marketing – product, price, place and promotion”, all of which the brand got right.  “Why wouldn’t you want to benefit from the hard work and money that somebody else has spent on their brand?” Turner asks.

“They’re developing their product, they’ve got innovation in the delivery unit and flavours, they’ve got great distribution and they seem to be relatively aggressive on pricing,” he adds.

It is also “widespread practice” for brands to file trademarks “as a defensive mechanism against third parties filing conflicting marks” as well as to pave the way for extension, according to one senior IP lawyer. 

But a defensive trademark could be rendered invalid if a court deems it to have been registered in ‘bad faith’. What constitutes ‘bad faith’ is “currently an open issue in UK law on appeal to the Supreme Court”, says the lawyer. A decision is expected this year in the long-running ‘SkyKick v Sky’ battle – in which SkyKick alleges Sky applies for overly broad trademarks.

In any event, “after five years of a mark being registered, it becomes open to revocation for non-use,” the lawyer says, meaning Lost Mary would have to bring forward NPD to retain the extended brand protection.

However, with disposable vapes to be banned from next year, category extensions could act as insurance against legislative clampdowns on Lost Mary’s move into non-disposables.

“They’ve spent all this time and money building a brand, so some form of transition into other categories would make sense,” says freelance brand strategist Alexandra Hamilton.

Diversification could also protect against fickleness of demand, as seen in Prime Hydration’s swift rise and fall.

“The number one job for any brand is to grow your mental and your physical availability,” says Turner, something presence in new categories would achieve for Lost Mary.

A move into booze, where there are strict rules against marketing to under-18s, would “feel like a legitimate way to grow the brand”, Turner says, arguing vaping is “more adjacent” with alcohol than other categories in Lost Mary’s application. 

Inevitable backlash

But for Lost Mary-branded ice cream, energy drinks or confectionery, a backlash would be inevitable and considerable.

Caroline Cerny, director of policy and engagement at youth campaign group Bite Back, argues Lost Mary has a “track record of marketing disposable vapes to children”, citing its use of “popular dessert and soft drink flavours”.

Lost Mary and sister brand Elf Bar pledged to drop these flavours in November last year, but – at the time of writing – Lost Mary flavours including Cotton Candy Ice, Pink Lemonade and Juicy Peach remain on sale.

A recent Bite Back report accused Kraft Heinz, PepsiCo and Mondelez International of using “bright colours” and “unconventional” flavours to market HFSS foods such as sweets, chocolate and ice creams to children. Cerny accuses Lost Mary of “similar tactics”, and describes the prospect of Lost Mary-branded HFSS products as “concerning”.

“Until we have stronger regulations on marketing of products that cause ill health, we’ll continue to see these types of businesses putting profits before health,” she says.

Lost Mary has built a brand identity quite unlike its “functional and product-centric” competitors, says Hamilton, appealing “to a consumer that likes to think of themselves as kind of unconventional or carefree” – so there could certainly be value in diversification.

But with campaigners and politicians watching, it should be careful what it wishes for, lest that brand goes up in smoke.