Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
As set out in rule 22.12, nicotine-containing products and their components are prohibited from being advertised in most online and electronic media, unless they are licensed as medicines. There is some scope, however, for ads for unlicensed nicotine-containing e-cigarettes to appear on marketers’ own websites and other non-paid-for space online under their control, provided claims are factual, rather than promotional.
The law doesn’t provide clarity on what is likely to constitute factual or promotional content and the ASA will make careful assessments of individual complaints, based on the content and context of the material in question.
Given the lack of clarity in the law and the creative nature of advertising, it’s not possible to provide definitive lists of claims that fall into each category, but this guidance aims to provide an idea of the types of claims likely to be considered factual and those likely to be considered promotional.
What is likely to constitute a factual claim?
While the likely acceptability of claims will depend on the context in which they are used and the overall impression given, our understanding is that the following types of claims are likely to be considered factual in nature and are therefore likely to be permissible on marketers’ own websites and other non-paid-for space under their control:
- The names of products (provided they are not promotional in nature, for example names which include product claims).
- Images of the product (provided they are not promotional in nature, or otherwise in breach of the Code)
- Descriptions of product components including, where applicable, the opening and refill mechanism.
- Price statements (which might include different bulk prices, reduced prices etc.) however, see “promotional marketing” below.
- Instructions as to how products can be used and stored.
- Product ingredients, including ratios of diluents.
- Factual descriptions of flavours, vapour etc.
- Nicotine content and delivery per dose.
- Reference that the product is not recommended for use by young people and non-smokers and warning for specific risk groups.
- Contra-indications and possible adverse effects.
- Addictiveness and toxicity.
- Name and contact details of the producers etc.
- Recommendations to keep the product out of reach of children.
What is likely to constitute a promotional claim?
While the likely acceptability of claims will depend on the context in which they are used and the overall impression given, our understanding is that the following types of claims and techniques are likely to be considered promotional in nature and are therefore unlikely to be permissible on marketers’ own websites and other non-paid-for space under their control:
- Descriptive language that goes beyond objective, factual claims.
- Promotional marketing, as defined by Section 8 of the CAP Code.
- Significant imagery that is not related to the product.
- Comparative claims with other e-cigarette products or the general market (and savings claims based on such claims.
- Health claims (e.g. that e-cigarettes are safer or healthier than tobacco).
- Testimonials featuring promotional claims.
- Market leading or top-parity claims.
The ASA has ruled that a number of ads breached rule 22.12 by featuring claims that went beyond purely factual information and constituted promotional language. For example:
The ASA’s ruling on Nicoventures Trading Ltd (17 October 2018) and Nicoventures Retail (UK) Ltd t/a Vype (08 January 2020) demonstrate how flavour descriptions, the use of imagery, savings claims – and collaborations involving celebrities - can go beyond purely factual claims.
A ruling against Thinking Plus Ltd demonstrates that loyalty schemes (a form of promotional marketing, as defined by Section 8 of the Code) are considered promotional for the purpose of rule 22.12.
Safercigs Ltd breached rule 22.12 by featuring health claims and the claim “changing the way you vape one tank at a time “, which went beyond purely factual information. This ruling also demonstrates that font style can also factor into the ASA’s consideration of such material under rule 22.12.
See also: Electronic cigarettes: Overview and Electronic Cigarettes: Media Prohibitions