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 Advertising Standards Authority.

Section 22 of the CAP Code concerns the regulation of marketing communications for electronic cigarettes. For the purposes of this section, an “electronic cigarette” is any product intended for inhalation of vapour via a mouth piece, or any component of that product including, but not limited to, cartridges, tanks or e-liquids. The rules apply to any ad for e-cigarettes or related products, including e-shisha and e-hookah products, regardless of whether they contain nicotine.

Be aware of the legal changes to the advertising of electronic cigarettes

In May 2016, the Tobacco Products Directive came into effect in UK law, affecting how e-cigarettes may be advertised. As a result, there are significant prohibitions on ads for nicotine-containing e-cigarettes which are not licensed as medicines.

The legislation paints a complex regulatory picture where non-broadcast media is concerned and CAP will therefore consult on how the law might be best reflected in the Code. Amongst other things, the consultation is likely to explore how marketing communications for non-nicotine products (which are not prohibited) can avoid indirectly promoting nicotine products and what marketers may feature on their own websites to provide information on their products without breaching the prohibition on promotion.
 

Marketers may wish to refer to the Department of Health’s published guidance on the advertising of e-cigarettes, which states that ads for nicotine-containing e-cigarettes not licensed as medicines are prohibited in the following media:

  • On-demand television
  • Newspapers, magazine and periodicals (except trade press)
  • Internet display, email and text message advertising

The guidance states that ads for nicotine-containing e-cigarettes not licensed as medicines are permitted in the following media:

  • Outdoor posters and on sides of buses (not travelling outside of the UK)
  • Cinema
  • Fax
  • Leaflets
  • Direct hard copy mail
Marketers’ own websites may present factual information about products but may not be used to promote or advertise them. As stated above, how this will work in practice will form one of the key topics in CAP’s public consultation.

CAP will make further announcements on its plans for consultation in due course; those interested should sign up to receive CAP’s Update e-newsletter. Marketers are advised to seek legal advice in the interim.
 

All relevant specific and general rules in the CAP and BCAP Codes continue to apply to e-cigarette ads at this time. The following guidance applies to current marketing communications which are permitted under the legislation.

Ensure your ads are socially responsible

Ads must be socially responsible (rule 22.1) and should not encourage non-smokers or non-nicotine users to use e-cigarettes (rule 22.8).

The ASA ruled that a TV ad featuring someone saying “I used to smoke normal cigarettes, but after I quit, I tried these” was irresponsible, because they believed viewers were likely to interpret the claim as meaning the man featured had stopped smoking for a period of time and was therefore a non-smoker who had subsequently taken up using KiK e-cigarettes, rather than someone who had exchanged their normal cigarettes for e-cigarettes (Vape Nation Ltd, 24 December 2014).
 

Don’t target or feature children, or include content which is likely to appeal particularly to children

Ads for e-cigarettes must not feature anyone playing a significant role or using an e-cigarette if they are, or appear to be, under the age of 25 (rule 22.10). Similarly, any content likely to be of particular appeal to people under 18 is likely to breach rule 22.9. With this in mind, marketers should avoid anything likely to reflect or be associated with youth culture, characters likely to be of particular appeal to people under 18 and depicting people behaving in an adolescent or juvenile manner.

Marketers should also take care to ensure responsible targeting; ads should not be directed at people under 18 through the selection of media and no medium should be used if more than 25% of its audience is under 18 (rule 22.11).The ASA ruled that several online ads for an e-cigarette brand were irresponsible, because they featured celebrities which the ASA considered were likely to be of particular appeal to children and presented models in a way they considered was reminiscent of young urban fashion. The ASA was also concerned that the ads depicted people who appeared to be under the age of 25 both in significant roles and using e-cigarettes (Hubbly Bubbly Ltd, 10 June 2015).

Don’t confuse e-cigarettes with tobacco products

Advertising tobacco products to the public is prohibited (rule 21.1) and while the advertising of e-cigarettes is permitted in some media, those ads must contain nothing which promotes any design, imagery or logo that might be associated with a tobacco brand (rule 22.2).

Equally, ads for e-cigarettes must contain nothing which promotes the use of a tobacco product or shows the use of a tobacco product in a positive light (rule 22.3). Marketing communications must also make clear that the product is an e-cigarette and not a tobacco product (rule 22.4).

Don’t make health or safety claims

Ads must not contain health or medicinal claims, unless the product is authorised for those purposes by the MHRA. Claims that smoking e-cigarettes is healthier than smoking tobacco, risk free or harmless are likely, therefore, to be problematic (rule 22.5). Similarly, endorsements by health professionals are not permitted (rule 22.6).

Don’t make smoking cessation claims

Marketers cannot claim or imply that their product can act as a smoking cessation device, unless the product is authorised for that purpose by the MHRA. E-cigarettes may be presented as an alternative to tobacco, but marketers must do nothing to undermine the message that quitting tobacco use is the best option for health (rule 22.5).

Marketers should also avoid any claims which may be interpreted as implied smoking cessation claims. The ASA ruled against a press ad for an e-cigarette which referred to “Stoptober”, because they were concerned that consumers were likely to interpret this as meaning the product was associated with, or endorsed by, the NHS campaign “Stoptober”, which was not the case, and that they were likely to believe the product was suitable for use as a smoking cessation device as a result (1111 EC Services Ltd, 12 February 2014).
 

Don’t mislead about product ingredients

If the product contains nicotine, a statement to make this clear must be included in the ad (rule 22.7). The ASA has ruled that because a banner ad on a marketer’s Twitter page was likely to be interpreted as promoting the marketer’s entire range of products, some of which contained nicotine, the ad breached the Code by omitting that information (Hubbly Bubbly Ltd, 10 June 2015).

Factual claims about product ingredients are likely to be considered acceptable, but marketers must ensure they hold evidence to support those claims and care should be taken to ensure factual claims about product ingredients do not imply a health or medicinal claim, which would be prohibited under rule 22.5.
 

Don’t mislead about where products may be used

While the use of electronic cigarettes in public spaces is not prohibited by law, policy on their use varies and as such, claims that e-cigarettes may be used everywhere are unlikely to be considered acceptable (Desert Point Ltd, 24 October 2012).

Related rulings

E Cigilicious, 2 April 2014

Nicocigs Ltd, 5 February 2014

Ten Motives Ltd, 25 September 2013 

ZULU Ventures Ltd, 25 September 2013

Zandera Ltd, 25 September 2013

Sorse Distribution Ltd, 25 September 2013

Nicocigs Ltd, 16 January 2013

CN Creative Ltd, 11 June 2014

Cigerex Ltd, 19 December 2012

Ten Motives Ltd, 12 March 2014

 

 

 

 

 

 

 

 

 

 

 

 

 

Updated 15 July 2016

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