Who: Committee of Advertising Practice (“CAP”)
When: 7 March 2017
Law stated as at: 1 February 2017
A new rule (rule 22.12) in the UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (the “CAP Code”), prohibits the direct or indirect advertising of nicotine-containing electronic cigarettes that are not licensed as medicines. Advertising is prohibited in some but not all non-broadcast media, including newspapers, magazines and periodicals, online media and certain other forms of electronic media. The new rule has been introduced as a result of changes to the law which came into effect in April 2016: the Tobacco and Related Products Regulations 2016, which implement the revised European Tobacco Products Directive.
The law is somewhat complicated because its advertising prohibitions only apply to ads of certain types, in relation to certain types of products and only in certain media, which has left uncertainty as to its application, in part also due to the lack of legal precedent. The new rule in the CAP Code does not seek to answer these uncertainties and instead reflects many of the complexities found in the new law. In an attempt to alleviate some of the confusion in its interpretation and application, the new rule in the CAP Code was published together with Advertising Guidance.
The Advertising Guidance sets out lists of which media are subject to the prohibition, the media which are not subject to the prohibition, and information about the application of the CAP rule on marketers’ own websites and some other places online. The guidance also gives more detail on the prohibition of indirectly promoting nicotine-based products.
Why this matters:
This new CAP Code rule means that marketers can no longer place ads for nicotine-containing e-cigarettes, which are not licensed as medicines, (or their component products) in print media or online. However, marketers can continue to advertise non-nicotine products, so long as these do not cross-promote nicotine-containing products. In other words, they must not have the indirect effect of promoting nicotine based products, for example, where a non-nicotine based product and a nicotine based product are sold under the same name.