Electronic Cigarette Industry Trade Association

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CAP and BCAP publish new UK advertising rules for e-cigarettes

CAP and BCAP publish new UK advertising rules for e-cigarettes

09, Oct, 2014

by Katherine Devlin

In a frankly astonishing and devastatingly impressive flourish of efficiency, the Committees of Advertising Practice have today published their new rules specifically for electronic cigarettes – despite the large number of detailed responses. These will be enforced by the Advertising Standards Authority from 10th November 2014.
Following the public consultation in April, ECITA is delighted to see that the Committees appear to have robustly examined all the evidence submitted, and have produced rules which are truly proportionate, appropriate, fair, and crucially, absolutely in harmony with its stated objective: that adverts must not mislead, harm, offend or otherwise be socially irresponsible.
The rules which are included are very useful, and provide enough scope for creative advertising for this vibrant and innovative sector, but perhaps more fascinating is the rules which were not included. The rationales behind all the decisions taken make for very interesting reading, and can be found in the full Regulatory Statement, available here.
In summary, the rules are as follows:
1. Marketing communications/advertising for e-cigarettes must be socially responsible.
2. Marketing communications/advertisements must contain nothing which promotes any design, imagery or logo style that might reasonably be associated in the audience’s mind with a tobacco brand.
3. Marketing communications/advertisements must contain nothing which promotes the use of a tobacco product or shows the use of a tobacco product in a positive light. This rule is not intended to prevent cigarette-like products being shown.
4. Marketing communications/advertisements must make clear that the product is an e-cigarette and not a tobacco product.
5. Marketing communications/advertisements must not contain health or medicinal claims unless the product is authorised for those purposes by the MHRA. E-cigarettes may be presented as an alternative to tobacco but marketers must do nothing to undermine the message that quitting tobacco use is the best option for health.
6. Marketers/advertisements must not use health professionals to endorse electronic cigarettes.
7. Marketing communications/advertisements must state clearly if the product contains nicotine. They may include factual information about other product ingredients.
8. Marketing communications/advertisements must not encourage non-smokers or non-nicotine-users to use e-cigarettes.
9. Marketing communications/advertisements must not be likely to appeal particularly to people under 18, especially by reflecting or being associated with youth culture. They should not feature or portray real or fictitious characters who are likely to appeal particularly to people under 18. People shown using e-cigarettes or playing a significant role should not be shown behaving in an adolescent or juvenile manner.
10. People shown using e-cigarettes or playing a significant role must neither be, nor seem to be, under 25. People under 25 may be shown in an incidental role but must be obviously not using e-cigarettes.
11. Marketing communications must not be directed at people under 18 through the selection of media or the context in which they appear. No medium should be used to advertise e-cigarettes if more than 25% of its audience is under 18 years of age.
12. Radio Central Copy Clearance – Radio broadcasters must ensure advertisements for e-cigarettes are centrally cleared.
We are particularly pleased to note that the rules make it so clear that e-cigarettes are not tobacco products, and that tobacco companies must not in any way use their control of a small number of electronic cigarette brands to promote their tobacco products.
The rules which were consulted on, but which are not being implemented are very interesting indeed:
a. Links with gambling, alcohol or illicit drugs.
The Committees consulted on a rule which would prohibit linking e-cigarettes with gambling, alcohol or illicit drugs, but expressed at that stage their doubts about whether or not such a rule was necessary. They have:
“had to consider whether the depiction within an advertisement of co-locating e-cigarettes with the responsible depiction of alcohol or gambling is in every circumstance likely to be regarded as irresponsible.
B/CAP’s consideration is that such a restriction is disproportionate. While B/CAP do not and cannot pre-approve specific creative treatments, it is their view that there are likely to be ways in which advertisements may feature an e-cigarette in an environment in which alcohol is being consumed or gambling conducted without being harmful or irresponsible. This is particularly the case given that, as some respondents have noted, e-cigarettes have a particular appeal as an alternative to tobacco in such environments.”
This is very much in line with ECITA’s proposals in our response to this consultation:
“Agree in relation to illicit drugs. However, neither gambling nor the consumption of alcohol is an illicit activity. Consider it would be entirely appropriate and potentially useful to be able to link the use of ecigs with the sensible consumption of alcoholic drinks, particularly because the association for smokers is so intense. Useful for ads to demonstrate that smokers can derive the same (or better) benefits from using an ecig instead of smoking in those social contexts. This will help gain the maximum public health benefits from more smokers switching to the demonstrably safer alternative.”
(Several of the other decisions are also broadly in line with ECITA’s suggestions.)
b. Use in “unwise” situations.
The Committees had proposed, “on a precautionary basis”, a rule stipulating certain circumstances in which e-cigarettes should not be depicted because it would be “unsafe or unwise”.
Following review of the consultation responses, the Committees:
“do not consider that any of those specific suggestions (for example certain locations, in public vehicles) are so unambiguously harmful in all instances that they need to be precluded in the wording of the rule. Some of the suggestions would more appropriately be addressed under other Code rules e.g. rules which prevent anything that is ‘likely to condone or encourage an unsafe practice’ (CAP) or ‘prejudice health and safety’ (BCAP).”
c. “18 and over” messages
The Committees consulted on a rule which would require all advertisements to state that products were “only suitable for those aged 18 years and over”.
In the consultation, the Committees “had cause to question the overall value of warning messages”. They concluded:
“Many consultation respondents shared B/CAP’s scepticism. In light of that and the available evidence, B/CAP consider that the limited effect of warning messages, when weighed against their potential to create warning fatigue, to have a result that is opposite to the one intended and their potential cost to advertisers, make the implementation of an 18 and over message unnecessary. B/CAP consider that the rules provided serve to offer sufficient protection to under 18s.”
In section 7 of the Regulatory Statement (linked above), the key decisions taken are given their rationale. We highly recommend that our industry colleagues read this document in full. Of particular note, however, at 7.3, they say:
“E-cigarettes are not a tobacco product and are not currently subject to the same legislative controls as tobacco; although B/CAP understands that restriction of sale to those aged 18 and over is imminent. E-cigarettes are also a product of legitimate interest for those looking to consume nicotine without tobacco.”
Section 7.5 deals with ‘Glamorisation and other specific creative treatments’, and reads:
“A number of respondents suggested that B/CAP prohibit glamorisation or other specific types of creative treatment. B/CAP wish to set proportionate rules which allow marketers to use varied and creative approaches so long as those approaches are not particularly likely to be attractive to non-smokers or under-18s, and are not harmful, offensive or otherwise irresponsible. Given that the natural function of advertising is to present products in their best light, B/CAP consider that prohibiting glamorisation is too broad a criterion to be instructive to advertisers seeking to make responsible advertisements, or to the ASA when enforcing the rules.
Some respondents suggested that the rules replicate provisions provided in the Alcohol and Gambling sections of the Codes. For example, by prohibiting links with sexual success, or limiting their depiction in social situation. However, the content restrictions provided for alcohol and gambling reflect specific concerns that exist for those sectors. E-cigarettes present only some of the same concerns as alcohol and gambling and crucially there are strong arguments for the public health benefits of e-cigarettes. B/CAP therefore do not currently consider that the same content restrictions currently need to apply.”
Unfortunately, at section 7.6, the Committees have felt it necessary to:
“set and communicate a broad prohibition on any claims that e-cigarettes are able to convey health benefits or that they are ‘safer’ or ‘healthier’ than smoking tobacco.” (Our emphasis.)
Whilst ECITA understands that there are some ‘cowboy’ operators out there in this market, we feel that responsible companies who are undertaking the necessary safety testing of their products should be able to convey accurate messages, including that their products are ‘safer’ and ‘less harmful’ than smoking, providing they have the robust evidence to support such claims. We are very hopeful that the Committees will agree with us on this, and look forward to providing them with such evidence and having that discussion with them.
It is interesting to note at section 7.8 that even if an e-cigarette is licensed as a medicinal product, these new rules will still apply, although with the permission to make the medicinal, health and safety claims as supported by the rules on medicines advertising. They state:
“Although such products will, by their nature, have had to meet particular standards of quality and safety, B/CAP considers that their advertising presents many of the same concerns as that for consumer electronic cigarettes. Specifically, they can look like tobacco products, are used in the same way and contain nicotine. For those reasons the new rules will apply to these products also.”
At section 7.9, the Committees confirm that the rules will apply equally to products which do not contain nicotine, as well as those that do, including to e-shisha and e-hookah products. We totally agree with this assessment and are very grateful to the Committees for taking this clear position.
The Committees evaluation of the consultation responses they received can be found here.
Guidance on how to interpret the rules will be coming soon, as soon as the Committees have casework to inform them. This will help the industry ensure that its advertising is in compliance with these mandatory and enforceable rules.
The purpose of advertising is to educate and inform consumers. Today’s advertising rules do a fantastic job at enabling that. Well done, CAP and BCAP!