Who: The Committee of Advertising Practice and the Broadcast Committee of Advertising Practice
When: 27 February 2014
Law stated as at: 28 February 2014
The Committee of Advertising Practice (“CAP”) and the Broadcast Committee of Advertising Practice (“BCAP”) (together the “Committees”) have launched a public consultation on proposals to introduce new rules for the advertising of electronic cigarettes.
The current editions of the CAP and BCAP Codes and e-cigarettes
The current edition of the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (“CAP Code”) contains no specific rules covering the advertisement of e-cigarette. However the CAP Code applies to all-non-broadcast marketing, including that for e-cigarettes, so offers general protections against misleading, offensive or otherwise harmful advertising.
TV advertisements for e-cigarettes are, however, caught by the specific rules in the UK Code of Broadcast Advertising (“BCAP Code”) designed to prevent the indirect promotion of tobacco products.
The ASA has previously investigated and published adjudications on a number of advertisements for e-cigarettes including against E-Lites, the first e-cigarette TV ad broadcast in the UK (which received 65 complaints). In the case of E-Lites both TV and radio ads were held misleading by omitting to mention whether the product contained nicotine. TV ads for Sky Cigs, 5 Colours and Ten Motives e-cigarette brands have also been banned for failing to make clear the products advertised were an e-cigarette, not displaying nicotine content and omitting to make clear that the products were only available to over 18 year olds.
The CAP has previously published guidance to help advertisers apply the general rules in the CAP Code and the precedent set by adjudication. However CAP acknowledges that the marketing for e-cigarettes is fast-growing and the existing rules have not been able to give advertisers the clarity they need.
Summary of the proposals
The Committee’s proposals are designed to address public concern and uncertainty amongst brands in the sector about the advertising of e-cigarettes by providing a clear framework for the responsible advertising of e-cigarettes. The proposals that will be consulted on include:
- Rules that specifically address concerns on the indirect promotion of tobacco products via the advertising of e-cigarettes;
- A prohibition on health or medicinal claims for e-cigarettes unless the product is licensed by the Medicines and Healthcare products Regulatory Agency (“MHRA”) for that purpose;
- A requirement to make clear that the advertised product is an e-cigarette and state clearly if the product contains nicotine;
- A prohibition on encouraging non-smokers or non-nicotine users to use e-cigarettes; and
- Specific rules designed to protect the young including a prohibition on e-cigarette adverts from appealing to under 18 year olds or showing anyone under 25 using an e-cigarette.
Next steps on consultation
Responses are being invited from a cross-section of interested parties including industry, public health professionals and consumer bodies.
The consultation opened on 27th February 2014 and will close on Monday 28 April 2014 following which the Committees are seeking to implement the proposals as soon as possible.
Why this matters:
Opinion remains divided amongst the public, policy makers and public health officials about e-cigarettes but there is undoubtedly considerable concern about the fact that e-cigarettes contain nicotine, their efficacy and safety, their potential to renormalize smoking and act as a gateway to nicotine or tobacco for the young or non-smokers. Whilst the Committees do not attempt to address these issues they are seeking to acknowledge that they carry a reasonable expectation of regulatory protection in relation to how e-cigarettes may be advertised.
The European Union is also considering the future of e-cigarette advertising. Although to the disappointment of some, Euro MPS recently rejected a proposal to classify them as drugs, Brussels has recently revised the draft Tobacco Product Directive to tighten the EU ecigarette regulatory regime. EU Ministers will vote soon on the following proposals:
- E-cigarettes to be regulated as consumer products, and not as medicinal products, unless the manufacturer chooses to.
- If manufacturers choose to make a claim that e-cigarettes help smokers quit, they will need to seek a medicines licence.
As a consumer product, e-cigarettes will be subject to:
- Quality and safety standards
- A maximum nicotine strength of 20mg/ml
- The same EU advertising restrictions as tobacco products
- A pre-market notification system in line with novel tobacco products
- A maximum size for cartridges and for refillable tanks (2ml) as well as for e-liquid bottles (10ml).
If adopted, the above restrictions must be in force in member states within two years.