Why a smoke and mirrors approach to promoting e-cigarettes won’t be allowed

A subject on many people’s lips at the moment is that of e-cigarettes and whether they should be allowed to advertise.

E-cigarettes, battery-powered metal devices that turn liquid (often containing nicotine) into vapour, are relatively new to the market but are gaining in popularity – and this is reflected in the increase in advertising we’re seeing.

E-cigarettes don’t contain tobacco. But due to many products’ visual likeness with cigarettes they've received a cautionary reception from the likes of public health experts and anti-smoking campaign groups. They've been concerned as to whether these products are safe, whether they indirectly promote smoking, and could appeal to young people.

This new product has also posed regulatory challenges due to the fact that the current rules weren't designed with it in mind. In turn this has created uncertainty amongst advertisers and consumers about whether an ad is acceptable.

In some cases e-cigarette ads are caught by rules that are intended to restrict the advertising of tobacco products. This means that companies wanting to advertise e-cigarettes are heavily restricted. On television and radio advertisers can’t depict products that resemble cigarettes, including any design, colour, imagery or logo style that might be associated in the audience's mind with a tobacco product. Furthermore broadcast ads that might appeal to children mustn't refer to smoking or products associated with it unless they obviously form part of an anti-smoking campaign.

The rules for non-broadcast ads, such as those appearing in print or on billboards, are slightly less limiting – there is no rule restricting cigarette-like products being shown. However, this does not give advertisers a free pass because they must still ensure their ads are socially responsible and not misleading, harmful or offensive.

On the opposite side of the debate there is a view that e-cigarettes could help smokers to quit or cut down. Earlier this year, the Medicines and Healthcare products Regulatory Agency (MHRA) announced their intention to regulate e-cigarettes as medicines from 2016, with the aim of making sure the products are safe and available to help support smokers to cut down or quit.

So what do the current advertising rules say? Like all ads, e–cigarette ads must comply with the general rules that mean ads shouldn’t mislead, harm or offend. We’ve banned several ads for this product over the past few months, including where advertisers have not made clear whether or not their e-cigarette contained nicotine. However, although we have the power to act already, it would be more helpful for advertisers and consumers if there were specific rules covering e-cigarettes and the particular questions they raise.

Next steps

We know that it’s important to ensure the right protections are in place, particularly when the public’s health is concerned. That’s why CAP will be launching a full public consultation on new rules as early as possible in the New Year. This will mean clarification for advertisers about what they can and can’t do, and ensure this product is advertised responsibly.

Rulings

Nicocigs Ltd –This press ad for Nicolites was banned for making claims that the product was not harmful, or was "safer" or "healthier" than smoking, because they couldn't prove it.

Sorse Distribution Ltd t/a 5 Colors –This TV ad did not make clear that the product was an e-cigarette, that it did not contain nicotine, and that it was not available to those under the age of 18.

Zandera Ltd –This e-lites TV ad was banned for not making clear whether or not it contained nicotine, and for likely appeal to kids.

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