Who: Advertising Standards Authority (“ASA”)
When: 25 September 2013
Where: United Kingdom
Law stated as at: 10 October 2013
On 25 September 2013 the ASA published three (3) separate adjudications on TV adverts relating to electronic cigarettes (“e-cigarettes”/”e-cigs”).
Complaints were upheld about TV ads from ZULU Ventures Ltd, Sorse Distribution Ltd and Ten Motives Ltd in relation to their respective Skystart, Five Colours and Ten Motives brands of e-cigarette on the basis that the ads encouraged viewers to visit the brands’ websites but did not make clear the characteristics of the product being promoted.
The ad for Skystart e-cigs, for example, showed scenes of young adults undertaking various day-to-day activities. On-screen text during the ad referred to www.skystart.co.uk, provided an 0800 number and stated “SKYSTART only available to those over 18 years of age”. A voice-over stated “Life is not about tomorrow nor is it about yesterday. Life is about the moment, the now. Whoever you are, whatever you do, life only asks you one question – who will you share it with? Skystart”.
The ASA noted in each case that Clearcast had understood that references to e-cigarettes, or the product name, were prohibited by the BCAP Code, and that it was for this reason that the information was omitted from the ads. The ASA disagreed with this view, holding that the BCAP Code only required that ads for non-tobacco products, including e-cigarettes, did not reference smoking or tobacco and did not include “a design, colour, imagery, logo style or the like that might be associated in an audience’s mind with a tobacco product”.
Ad could come clean as advertising “e-cigarettes”
This did not prevent an ad containing references to an “e-cig”, “e-cigarette” or “vaporiser”, or information indicating that the product contained nicotine, so long as this did not also create a link between the product and smoking or tobacco products. The ASA considered that the nature of the products being advertised, and whether or not they contained nicotine, was material information that should have been present in the ads, and because it was not the ads were misleading.
It is worth noting that the Skystart and Ten Motives ads also attracted complaints on the basis that they were irresponsible and harmful because they promoted a nicotine-based product when nicotine was an addictive substance. However, the ASA did not uphold these complaints, considering that nicotine products were perfectly legal and were not a prohibited category under the BCAP Code, meaning that advertising of such products would not automatically be harmful so long as they were advertised in a socially responsible way. The ASA held that the ads neither glamourised e-cigarettes nor encouraged excessive consumption and therefore were not irresponsible or harmful.
On a similar note, the ASA did not agree with complaints alleging that the Skystart and Five Colours ads promoted a product that would encourage people, particularly young adults and children, to take up smoking. The ASA held that the ads were unlikely to be of particular appeal to children and noted that they had been given an “ex-kids” restriction by Clearcast, meaning that they would not be broadcast around programmes of particular appeal to children. Moreover, the ads did not include any reference to tobacco products and therefore the ASA’s view was that they did not encourage people of any age, including young adults and children, to start smoking tobacco cigarettes. However, the ASA did uphold a complaint about the Five Colours ad on the basis that it did not make clear in the ad that the product was unsuitable for those under eighteen (18) years of age.
Other recent developments
The abovementioned ASA adjudications are not the only reason for the regulation of e-cigarettes hitting the headlines recently.
Earlier this month, manufacturers of e-cigarettes were relieved after the European Parliament decided not to impose stringent restrictions on their products when approving updated tobacco laws. The new laws impose even tougher rules than currently exist regarding the sale and manufacture of traditional cigarettes, and there was much speculation that part of the reforms would also involve automatically categorising e-cigarettes that contain nicotine as medicines, thereby subjecting them to a plethora of rules and regulations.
The European Parliament’s view was that this should only be the case where manufacturers claim that they can cure or prevent tobacco smoking. Negotiations will now take place with EU member states over final legislation.
Important changes proposed in the updated tobacco rules include increased sizes of health warning labels, which must take up 65% of the packaging rather than 30-40% of it, and a ban on menthol and other flavoured cigarettes by 2022.
That said, it is worth noting that, while welcoming the proposed new restrictions on tobacco cigarettes, the UK Department of Health suggested that it was disappointed about the relaxed approach to e-cigarettes, with a spokesperson stating: “We believe these products need to be regulated as medicines and will continue to make this point during further negotiations”.
These developments come hot on the heels of a meeting between CAP and the Electronic Cigarette Industry Trade Association to discuss the regulation of e-cigarette advertising and an anticipated crackdown in the US by the Food and Drug Administration, which is expected to curb TV ads for e- cigarettes as a minimum.
Why this matters:
E-cigarettes are now big business with many of the largest tobacco companies adding such products to their portfolios in the last few years and estimated revenues for the products now topping $1 billion per year.
While some argue that e-cigarettes can be an important stepping stone for smokers who want to give up completely, and point out that they are far less harmful than traditional cigarettes, others feel that e-cigarettes encourage young people to take up smoking in the first place. Clearly they are going to be a hot topic for the foreseeable future and it will be interesting to see whether they are mentioned in the finalised EU tobacco laws, what approach is taken in the US and whether the CAP Code is amended to impose more onerous restrictions. Watch this space!