Who: Committee of Advertising Practice (“CAP“)
When: 29 September 2016
Law stated as at: 9 November 2016
As we reported earlier this year (see our previous post on this here), the Tobacco and Related Products Regulations (the “Regulations“) came into force on 20 May 2016 and these tightly restrict the advertising of e-cigarettes that contain nicotine but are not licensed as medicines.
Following that implementation, CAP has now launched a consultation on new rules and guidance for the advertising of e-cigarettes which tries to reflect the drafting of the Regulations. The proposals are set out into (i) those relevant to the CAP Code only and (ii) issues relevant to both the CAP and BCAP Code, with the following interesting points being consulted on:
Issues relevant to the CAP Code only
- Determining which products are prohibited: CAP has attempted to clarify the type of products that are subject to ad restrictions according to the law. It therefore proposes to restrict ads for non-nicotine and refillable products (if they can both be refilled with a nicotine e-liquid) and e-cigarettes that contain nicotine and their components (which are not authorised as medicines or medical devices). This then means that CAP will not prohibit ads for the following products (as long as they do not have the direct or indirect effect of promoting an unlicensed nicotine product in accordance with the CAP Code): non-nicotine liquids, non-nicotine disposable e-cigarettes (those not able to be refilled), non-disposable e-cigarettes designed to only take cartridges with non-nicotine containing fluid and medicines and medical devices (which are subject to separate medicines advertising legislation).
- How marketers can sell and make claims about these products on their own websites: Whilst the Regulations set out almost a complete ban on online advertising, CAP considers that this does not cover instances where the retailer merely provides factual information in response to a specific request from a consumer. By allowing factual claims on marketers’ own websites in this way, CAP’s suggestion mirrors the restrictions in place for general tobacco products. In order to use this approach, CAP must then of course distinguish factual from promotional information and it proposes to publish guidance on how it will judge this. However, it does say that the following claims will be seen as factual in nature (as opposed to promotional): the names of products (so long as the names are not promotional in nature, for example names which include product claims), descriptions of product component (including the opening and refill mechanism), price statements, instructions as to how products can be used, product ingredients, flavours and nicotine content.
Issues relevant to both the CAP and BCAP Code
- Indirect promotion of nicotine-containing e-cigarettes: CAP plans to release guidance on how it will determine whether an ad indirectly promotes nicotine-containing e-cigarettes but has helpfully confirmed that its view is that to use the same brand name as a nicotine product will have the effect of indirectly promoting a nicotine brand, as will using a strapline, celebrity, licensed character or branding which is synonymous with a nicotine product. As such, to allow non-nicotine e-cigarettes to be branded and advertised in those ways would be in breach of the prohibition on indirect promotion.
- Ads by e-cigarettes retailers: Within the consultation, CAP has questioned whether the CAP and BCAP Codes should allow ads for e-cigarette retailers as long as those ads do not refer to products which cannot be advertised. If an ad does not have the effect of promoting an e-cigarette (in that it doesn’t show or refer to a product) and doesn’t contain any of the identifiers mentioned in relation to indirect promotion mentioned above, then CAP plans to allow such ads.
- Amendment to current approach: As part of the consultation, CAP also questions the ongoing suitability of current CAP and BCAP content, placement and scheduling rules. Alongside this, it has shown consideration as to whether to continue to prohibit health claims in relation to e-cigarettes or whether there is room to allow claims about their comparative safety compared with tobacco.
Why this matters:
Whilst e-cigarettes have already been added to the list of prohibited categories of products that cannot be advertised through broadcast media, the industry has waited for quite a few months for full guidance from CAP on this in a non-broadcast context.
The consultation document acts as a really useful summary of the Regulations and what this will mean in practice. Some of the suggestions will clearly have a large impact on the industry, particularly in relation to CAP reconsidering its current approach in relation to health claim. The guidance it has provided in relation to indirect promotion of products can also be used as helpful assistance when determining the acceptability of general tobacco products.
This is a contentious area and one which has attracted increasing scrutiny in light of Brexit and calls for the effect of the Tobacco Products Directive 2014/14/EU (which was largely seen as a European concern, rather than British) to be reversed once the UK leaves the European Union.