E-cigarettes: Marketing Rules
The marketing of e-cigarettes is not currently subject to any specific regulation, but the situation is about to change. Early in 2014, the Advertising Standards Authority (ASA) announced a full public consultation and invited responses from all parties involved and from the general public. At the occassion, the secretary of the Committees of Advertising Practice (CAP), which write and maintain the UK Advertising Codes, Shahriar Coupal said: “The market for e-cigarettes is fast-growing and the existing rules haven’t been able to give advertisers the clarity they need. By proposing new specific rules, we’re providing a clear framework for responsible advertising.
- For examples and an analysis of recent advertising, see the pages on E-cigarettes: Marketing
Lack of Rules on the Marketing of E-cigarettes
At this moment, the Advertising Standards Authority (ASA) has two existing sets of rules that potentially affect the marketing of this new product. Firstly, there is a strict ban on promoting tobacco products. And secondly, misleading, harmful or offensive advertisements are prohibited in the UK.
Ban on Promoting Tobacco Products
Television advertising of tobacco products was banned in the UK on 1 August 1965 under the Television Act 1964, which was reinforced by an EU directive in the 1980s; commercials for loose tobacco and cigars continued until 1991. Other advertising, such as press and billboard, was governed by a self-regulatory agreement with the Government covering the manner of advertising and the positioning of promotional sites. Non-television advertising campaigns came under stricter guidelines in 1986, which in particular, prevented adverts from actually showing a person smoking. Under the Tobacco Advertising and Promotion Act 2002, tobacco advertising in the press and on billboards was outlawed from February 2003, while direct marketing was banned from May of the same year.
The ASA explains the consequences of the bans for marketing e-cigarettes:
- This means that companies wanting to advertise e-cigarettes are heavily restricted. On television and radio advertisers can’t depict products that resemble cigarettes, including any design, colour, imagery or logo style that might be associated in the audience's mind with a tobacco product. Furthermore broadcast ads that might appeal to children mustn't refer to smoking or products associated with it unless they obviously form part of an anti-smoking campaign.
- The rules for non-broadcast ads, such as those appearing in print or on billboards, are slightly less limiting – there is no rule restricting cigarette-like products being shown. However, this does not give advertisers a free pass because they must still ensure their ads are socially responsible and not misleading, harmful or offensive.
Awaiting the results of the consultation, ASA developed a code for e-cigarette advertising based on the prohibition of misleading, harmful or offensive advertisements in the UK. Marketers are not permitted to make health related claims about e-cigarettes, i.e. that they are ‘healthier than tobacco’ or that they are ‘risk-free’ without ‘robust clinical evidence to support their claims.’
- For more information, see the December 2013 ASA web page on advertising of electronic cigarettes: No smoke without fire?
Sky Cig Ad Banned
The advertisment for Sky Cig described in more detail at the E-cigarettes: Marketing page showed young people performing youthful activities, partying, mountain biking, relaxing in bed, and travelling. The voice-over emphases that “Life is about now” ...."Life is only asking you one thing..." ... "Who are you sharing it with?" showing a package of Sky Cigs.
Following a three-fold complaint against the Sky Cig advert, the ASA ruled that the advert was misleading because it did not say that the product was an e-cigarette or that it contained nicotine. Responding to the claim that the advert was irresponsible and harmful, because they believed it could encourage young adults and children to take up smoking, the ASA acknowledged “that inquisitive consumers (including young adults and older children) might be encouraged to visit Sky Cig’s website.” However, the Agency went on to rule that there was no breach under the current requirements of the code that bans the promotion of tobacco products (BCAP Code rule 10.4) “because the ad did not include any reference to tobacco products it did not encourage people of any age, including young adults and children, to start smoking tobacco cigarettes.” The advert was not permitted to run again in its original form.
The ASA ruled that some marketing claims from other, independent e-cigarette companies have gone beyond the available evidence. Claims that e-cigarettes can be used anywhere including in places where smoking is not permitted are not allowed because:
- …regardless of the legal position on the use of e-cigarettes compared with smoking conventional cigarettes, policy on whether the use of e-cigarettes was actually allowed varied between organisations, employers, etc, meaning that, while it might not be illegal to use e-cigarettes, it was not always allowed in all situations.
BAT Vype Ad Through the Loop Hole
BAT’s return to television advertising after more than a 20 year absence, this time advertising e-cigarettes, made headlines in the UK and abroad. In Marketing Week, the company emphasized its focus on making a "responsible" campaign for its e-cigarette brand Vype. A “significant” multi-million pound campaign supported by outdoor, press and digital ads should position Vype as a leading brand in the e-cigarette sector, according to Nigel Hardy, head of UK and Ireland for BAT subsidiary Nicoventures which launched Vype. He said:
- In Vype we are creating a modern brand that we need to communicate in a way that really appeals to smokers. We’re not focusing on the product, we’re building a brand which will be here for the long term.
However, the company had to make one key change to get its campaign on TV. Instead of promising “pure satisfaction for smokers” as the online ads do, restrictions on cigarette advertising meant that BAT had to change the TV tagline to “pure satisfaction for vapers.”
Consultation on E-cigarette Marketing
On 27 February, the Committee of Advertising Practice, which writes the regulatory codes for the Advertising Standard Agency, announced a full public consultation and invited responses from a cross-section of interested parties including consumer bodies, regulators, government bodies, public health professionals and industry. The ASA have drawn up 14 proposed rules, including:
- Specific rules designed to offer particular protection to the young, the vulnerable and to non- and former-users of nicotine. This includes rules prohibiting e-cigarette ads from appealing to under 18s or showing anyone under 25 using an e-cigarette;
- Rules that specifically address concerns about the indirect promotion of tobacco products via advertising of e-cigarettes;
- Proposals to prohibit health or medicinal claims for e-cigarettes unless the product is licensed for those purposes;
- A requirement for advertisers to make clear that the product being advertised is an e-cigarette and whether or not it contains nicotine.
The discussion about marketing e-cigarettes is closely linked to the debate on regulation, as the ASA explains:
- The proposals take into account the product’s potential for harm, addiction and association with tobacco, but they do not seek to answer the question of their proper use i.e. whether they should be used recreationally; as a smoking cessation device or at all. There have been high level discussions in the EU to address uncertainty about their proper use; the outcome of which will affect how these products are legally regulated and advertised in the future. It’s important, however, that advertisers and consumers are provided clarity and protection about the advertising of e-cigarettes in the interim period.
Other TobaccoTactics Resources
- CAP, Consultation on new advertising rules for electronic cigarettes, 27 February 2014, accessed April 2014
- ASA, No smoke without fire? Advertising of electronic cigarettes. Why a smoke and mirrors approach to promoting e-cigarettes won’t be allowed, 16 December 2013, accessed April 2014
- Polictics.co.uk, Tobacco Advertising. What is Tobacco Advertising?, 2012, accessed April 2014
- CAP, Electronic cigarettes, 2013, accessed January 2014
- Advertising Standards Authority, ASA adjudication on ZULU Ventures Ltd, 25 September 2013, accessed January 2014
- C. Cooper, E-cigarette adverts banned by watchdog, The Independent, 25 September 2013, accessed January 2014
- Advertising Standards Authority, ASA adjudication on Desert Point Ltd, 2012, accessed January 2014
- see for instance: Peter Evans, BAT Tweaks a Term to Promote E-Cigarettes on TV, Wall Street Journal, 17 February 2014, accessed April 2014
- Sarah Vizard, BAT looks to create ‘modern brand’ with first e-cig ads, Marketing Week, 17 February 2014, accessed April 2014