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.
The Tobacco Advertising and Promotion Act 2002 prohibits press, poster and most advertising on the internet for tobacco products, outlaws the free distribution of tobacco products and coupons and bans tobacco retailer ads targeted at the public.
The ASA considered a Facebook post which included text that stated “LATE NIGHT Special Delivery MCDONALD’S & CIGARETTE 10PM TO 3AM REDHILL to GAWTICK DELIVERY FEE FROM £4.99” and included an image of a burger alongside two cigarettes.
The ASA noted that TAPA and the related regulations set out certain exclusions from the prohibitions, for example: some tobacco content was permitted where tobacco products were offered for sale or where the content and context might be considered as a response to a consumer’s specific request for information about a tobacco product. They understood that Yoo Delivery did not directly sell cigarettes via their website or app and, rather, connected users with third-party providers of collection and delivery services. As such, they did not consider that a post advertising Yoo Delivery’s services on their Facebook page, constituted a response to a consumer’s request for information. Because the ad promoted cigarettes, a tobacco product, and did not fall within the exclusions of the relevant legislation, they concluded that the ad breached the Code (Yoo Delivery Company Ltd, 06 January 2021).
A website ad for a restaurant which included a menu for shisha products (a tobacco product), titled “The BEST SHISHA IN LONDON - which the ASA noted could not be purchased via the website, and which was in any case likely to attract an audience beyond those seeking tobacco products - was found in breach on a similar basis (Lebanese S Lounge Ltd t/a Beirut Nights, 16 January 2019).
Business-to-business ads are permitted. Marketing communications for rolling papers and filters and some point-of-sale advertisements are not covered by the ban.
This prohibition does not necessarily extend to all discussion of tobacco. The ASA has ruled that an ad by a leading international tobacco company related to the debate on plain packaging did not constitute an ad for tobacco products (Gallaher Ltd, 30 July 2014).
Marketers should note that, although the legislation prohibits all traditional forms of advertising for tobacco products as well as online marketing communications, it does provide for some narrow exemptions; in particular, for displays of tobacco products and prices on an advertiser’s own website where such products are offered for sale. It should also be noted that the statutory regimes governing advertising in England, Wales and Northern Ireland may differ from that in Scotland. There are also potential differences in the application of UK tobacco advertising legislation to websites operating outside the UK and the EEA.
For the avoidance of doubt, in order to conform to the law upon which it is based, the scope of application of rule 21.1 should be read in accordance with the relevant statutory provisions.
Marketers wanting clarification of the Act and its associated legislation should take legal advice or consult the Department of Health. The Tobacco Manufacturers’ Association (TMA) might be able to offer guidance and can be contacted on 020 7544 0100 or from its website www.the-tma.org.uk.
The rules governing the marketing of rolling papers and filters are outlined in Tobacco, Rolling Papers and Filters.
For guidance on other nicotine products please see Smoking, Stopping and Electronic Cigarettes.
Updated 29 July 2024