On Friday 20 May 2016 the Tobacco and Related Products Regulations 2016 (TRPRs) become law in the UK, implementing the European Tobacco Products Directive. The TRPRs contain significant prohibitions on ads for nicotine-containing e-cigarettes that are not licensed as medicines.

Now that the TRPRs are finalised CAP is examining how it might best approximate the advertising restrictions in its Code and what guidance it may be able to provide to marketers on their interpretation. However it should be understood that the TRPRs paint a complex regulatory picture. They apply only to ads for, or which indirectly promote, unlicensed, nicotine-containing e-cigarettes and not those for non-nicotine products or medicines. Additionally the restrictions apply only in particular media, banning advertisements completely in some places and restricting the types of claims permitted in others.

CAP will consult on this issue within a month. Consultation will give us an opportunity to set out and test publically what we understand the law intends to achieve and how it might best be approximated in the Code. Consultation will also allow us to explore a number of related issues including what ads for non-nicotine products (which are not prohibited) will need to do to avoid indirectly promoting nicotine products and what marketers can do on their own websites to provide information on their products without breaching the prohibition on promotion in the TRPRs.

CAP understands that the TRPRs are causing uncertainty about how and where e-cigarettes can be advertised in non-broadcast media. Marketers may wish to refer to the Department of Health’s published guidance on the advertising of e-cigarettes which states that ads in the following media are prohibited:

  • On-demand television
  • Newspapers, magazine and periodicals (except trade press)
  • Internet display, email and text message advertising

Further those documents state that ads are permitted in the following media:

  • Outdoor posters and on sides of buses (not travelling outside of the UK)
  • Cinema
  • Fax
  • Leaflets
  • Direct hard copy mail

The situation of marketers’ own websites under the TRPRs is complex: websites may present factual information about products but may not be used to promote or advertise them. As stated above, this will form one of the key topics in CAP’s public consultation.

CAP will make further announcements on its plans for consultation in due course. Those interested should sign up for CAP’s Update e-newsletter.

Broadcast advertising is also caught by the European Directive. On the direction of Ofcom BCAP will make changes to its Code on 20 May to implement those prohibitions directly in its Code. An announcement on those changes can be found here.

Please note: The CAP and BCAP Codes are in the process of being updated to reflect this change.

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