ASA Rulings on e-cigarette adverts

The UK Advertising Standard Authority (the “ASA”) has recently upheld a series of rulings made against e-cigarette companies for directly or indirectly promoting unlicensed nicotine-containing e-liquids and their components in online media, in breach of CAP Code 22.12. With annual figures from the Office for National Statistics showing that 4.5 million people in the UK use e-cigarettes daily or occasionally, 15.5% of whom are 16- to 24-year-olds, the ASA is looking to enforce the CAP Code against e-cigarette adverts appearing on social media.

The rulings, against companies including The Greatevape.com, Voopoo International Inc, and Vaporesso, relate to adverts on TikTok featuring brightly coloured e-cigarette products and overlaid text informing users of “endless flavours” and “limitless choice”. Many of these companies chose not to respond to the ASA’s enquiries, prompting the ASA to remind them of their responsibility to respond to queries quickly and to do so in the future. The ASA upheld its decisions that the adverts were in breach of CAP code 22.12 and that the code reflected a ban in the Tobacco and Related Products Regulations 2016 on the advertisement of nicotine-containing products that are not licensed as medicines. The ASA also referred to CAP guidance on “Electronic cigarette advertising prohibitions” which states that paid-for social media placements, advertisement features and contextually targeted branded content are likely to be prohibited.

As it stands, the CAP Code currently prohibits e-cigarette brands from any marketing activity that is associated with youth culture, including content that is likely to appeal to children. Further, ads showing people using e-cigarettes must not feature anyone who appears under the age of 25. In an attempt to protect young people from vaping related material, the Shadow Minister for Children and Early Years, Helen Hayes, has proposed a new bill that would ban the marketing of e-cigarettes with colourful packaging and branding. The bill, if passed into law, would also make the advertising restrictions statutory, rather than self-regulatory, as is currently the case under the ASA.

Therefore, a legitimate concern for companies involved in the e-cigarette market is how to ensure that their e-cigarette advertising is compliant. The CAP Code sets out the following key rules for the marketing of e-cigarettes:

• Nicotine-containing e-cigarettes, which are aimed at consumers rather than retailers, cannot be advertised in newspapers, magazines, online media, and some other forms of electronic media. However, factual claims for the products may be made on marketers’ own websites (CAP Code Rule 22.12).
• E-cigarettes that are not licensed by the Medicines and Healthcare Products Regulatory Agency should not make medical claims, including stop smoking claims (CAP Code Rule 22.5). Health claims may be allowed, but you will need robust supporting evidence, and that evidence must be specific to your own products, not e-cigarettes in general.
• If an e-cigarette product contains nicotine, you must make this clear in the advert (CAP Code Rule 22.7).
• Ensure that your adverts for e-cigarettes
  
  • do not use under 25s
  • do not appeal to under 18s (by reflecting or being associated with youth culture); and
  • are not directed adverts to under 18s (either through selection of media or the context in which they appear) (CAP Code Rule 22.9 – 22.11).
• Your adverts must not encourage non-smokers to take up e-cigarettes (CAP Code Rule 22.8).
• You must not advertise tobacco products, tobacco imagery or branding, or portray tobacco use in a positive light (CAP Code Rule 22.2 and 22.3).

The UK government has recently consulted on smoking and youth vaping, with the consultation closing on 6 December. The consultation asked about proposed measures to protect future generations from the harms of smoking, by creating the first smoke-free generation. It also asked about strategies to tackle youth vaping and proposals to grant local authorities new powers to enforce age of sale legislation for tobacco products and vapes through the issuance of fixed penalty notices. It will be interesting to see what the results of this consultation will be over the next few months. In the meantime, these rulings act as a reminder to manufacturers, retailers, and influencers of the strict rules on advertising tobacco and related products.

Written by Evie Scott.