Electronic cigarettes: Media prohibitions


INSIGHT
Published
Mar 4th '24
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Under advertising rules, nicotine-containing products and their components are prohibited from being advertised in certain media, unless they are licensed as medicines.  In addition to  Committee of Advertising Practice (CAP) guidance, marketers may wish to refer to the Department of Health’s published guidance on the advertising of e-cigarettes.

 

The prohibition relates to nicotine-containing disposable e-cigarettes (any product intended for the inhalation of vapour via a mouth piece – “vaping”), nicotine-containing e-liquids and any e-cigarette which can be used to consume nicotine-containing e-liquid, even if it is marketed as being for the consumption of non-nicotine containing e-liquid (“vape products”).

 

What does the rule state?

Ad rules state:

 

Except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which are not licensed as medicines are not permitted in the following media:

 

  • Newspapers, magazines and periodicals
  • Online media and some other forms of electronic media

 

Factual claims about products are permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control. Please refer to the Advertising Guidance.

 

As such, ads in newspapers, magazines, periodicals, online and in some other electronic media must not be used to advertise – whether directly or indirectly – nicotine-containing vape products unless they are licenced by medicines.

 

What constitutes “Online media and some other forms of electronic media”?

While not necessarily an exhaustive list, ads in the following media are likely to be prohibited:

 

  • commercial email, commercial text messaging and other messaging service
  • marketers’ activities online, for example on their website and on social media (except for permissible activities described in the sections below)
  • online (“display”) advertisements in paid-for space (including banner or pop-up advertisements and online video advertisements),
  • paid-for search listings; preferential listings on price comparison sites; viral advertisements
  • paid social media placements
  • in-game advertisements (including augmented reality and virtual reality environments)
  • commercial classified advertisements;
  • advertisements which are pushed electronically to devices;
  • advertisements distributed through web widgets
  • promotional marketing online
  • in-app advertising

 

What can be advertised on marketers’ own websites?

As rules state, there is some scope for ads for unlicensed nicotine-containing e-cigarettes to appear on marketers’ own websites and other non-paid-for space online under their control, provided claims are factual, rather than promotional.

 

In 2023, the Advertising Standards Authority (ASA) considered a website featuring a product listing for “Guava Rubicana by Frooti Tooti” and stated “2x Nicotine Shots Included” and as such, directly referenced a nicotine-containing vape product. The ASA acknowledged that the product’s name and packaging reflected what was contained within the product and did not consider the image used in the ad to be promotional in nature.

 

However, because the ads contained claims about the product, including text which stated that “It features a sweet and sharp taste of energising guava that fills your mouth with fruity juice in combination with fizzy sparks you must try a truly tropical vape juice!”, which went beyond the provision of factual information, they concluded that the ad breached the Code on this point. (Kick Ash Vapes Ltd, 01 February 2023).

 

For guidance on the type of claims likely to be considered factual and promotional, please see this guidance on factual vs. promotional claims.

 

What about ads on social media?

In principle, there is likely to be scope for the position which applies to marketers’ own websites to apply to some social media activity, but the legislation isn’t clear about how this might be achieved.

 

A social media page might be considered to be comparable to a website – and therefore able to feature factual claims – provided it can only be found by those actively seeking it.  Marketers wanting to promote unlicensed nicotine-containing cigarettes on their social media pages should try to ensure that the experience is, as far as possible, comparable to that of a website, for example ensure that the privacy settings are set so that claims about unlicensed nicotine-containing products appear on that page only and are factual in nature.

 

The ASA considered that an ad seen on Instagram, featuring an unlicenced vape product and the brand name in several places, directly promoted unlicensed nicotine-containing e-cigarettes and consequently the restriction that applied to online media under rule 22.12 was applicable (British American Tobacco UK Ltd, 18 December, 2019).

 

The ASA understood that it was possible for posts from a public Instagram account to be distributed beyond those users who had signed up to follow the account. As such, they considered that material from a public Instagram account was not comparable to a retailer’s own website and that material posted from such an account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that neither promotional nor factual content was permitted.

 

For the avoidance of doubt, ads which promote unlicensed nicotine-containing cigarettes elsewhere on social media, i.e. anywhere other than the marketer’s own page/profile, are likely to be prohibited by the rules.

 

In 2023, the ASA ruled that a Tik Tok post by a third-party marketer, featuring an individual going through their day and making references to vapes, including particular products and vaping, and statements such as “Best vapes out there…@elfbar_official_global”, was in breach of the Code. The ASA considered that advertising content from the third party account was not comparable with a retailer’s own website and therefore neither promotion nor factual content was permitted (Green Fun Alliance Ltd t/a Elf Bar, 10 May, 2023).

 

  • What about emails and other electronic messaging?

Advertising unlicensed nicotine-containing e-cigarettes in emails or other forms of electronic messaging is prohibited, but we understand that the law may allow marketers to respond to specific requests from consumers for information by email, on a one-to-one basis, though marketers are advised to seek legal advice before doing so.

 

As well as seeking legal advice, marketers are advised to ensure they are able to demonstrate all of the following:

 

  • that consumers who receive the message have specifically opted in to receive the information it contains;
  • that marketing lists are properly maintained in line with the General Data Protection Regulation (GDPR) and reflect recipients’ preferences about the information they do and do not wish to receive;
  • that recipients are given the option to opt-out with every communication, and
  • that the information contained in such communications is factual and non-promotional in nature, in line with this guidance here.

 

Bespoke conversations which take place between marketers and their customers in private over email or social media direct messaging, for example, are unlikely to be prohibited.

 

Can I advertise my business in media prohibited by ad rules?

There is likely to be some scope for e-cigarette businesses to advertise their existence in media covered by the prohibition reflected in rule 22.12, provided ads do not promote – whether directly or indirectly – unlicensed nicotine-containing products.  However, the legislation on which rule 22.12 is based doesn’t provide much clarity in this area.

 

The ASA will consider ads on a case-by-case basis, but marketers are advised to consider the following factors, which are likely to contribute to the ASA’s consideration of such material under rule 22.12.

 

Marketers are advised that while there is no guarantee that any content or claims will be acceptable, ensuring the following is likely to reduce the risk of ads for businesses breaching rule 22.12.

 

  • Ads should only advertise the existence of the business, rather than nicotine-containing products or brands.
  • Ads must comply with the guidance on “indirect effect”; ads which link directly to pages or sites where nicotine products can be bought, for example, are unlikely to be acceptable.
  • The acceptability of direct response mechanics, such as URLs and contact details will likely depend on the context and content of the ad and the content to which it links.

 

The ASA ruled that a press ad for an e-cigarette retailer breached rule 22.12 because although the focus of the ad was on the existence of the store rather than any specific product, it also featured an image of the inside of the store where a logo and brand name under which unlicensed nicotine-containing e-liquids were sold was visible.  While the inclusion of the logo and brand name were incidental to the main message of the ad, the ASA considered that because they were visible to readers, the ad had the effect of promoting unlicensed nicotine-containing e-liquids (Vcup Trading Ltd t/a Vape Cloud UK, 24 May 2017).

 

Source: CAP

 

Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the ASA. CAP’s AdviceOnline entries provide guidance on interpreting the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing.

 

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