Ad description
TikTok posts seen in July 2023 promoted e-cigarettes:
a. A post on Amelia Beavis’s TikTok account showed the influencer opening a package containing three Ringo vapes. She said, “I got sent three of these vapes. Obviously I’ve tried this one. This one’s the Gummi Bear one. Insane. These are the BMOR vapes. I’ll put their thing in the link below.” And, “They’re up to 600 puffs and they last so much longer than the Alphabars […] this one has been going for three days.” She listed the flavours of the three vapes. Text below the video stated “’bmorvape_official so tasty #ad” and “paid partnership”.
b. A post on the BMOR vapes TikTok account featured pack shots of three fruit flavoured Ringo vapes and a shot of fresh fruit. It was set to music which included the lines “Give it to me now” and “I love you”. Text below the video stated “BMOR RINGO 600 PUFFS DISPOSABLE VAPE”.
c. A post on the BMOR vapes TikTok account featured pack shots of three fruit flavoured Ringo vapes and a shot of fresh fruit. Text below the video stated “BMOR RINGO 600 PUFFS DISPOSABLE VAPE”.
d. A post on the BMOR vapes TikTok account featured Goku vapes and the same sound track as ad b. It showed a woman unpacking and then smoking the vape. Text below the video stated “BMOR RINGO 600 PUFFS DISPOSABLE VAPE”.
Issue
The ASA challenged whether the post breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Response
BMORvape did not respond to the ASA’s enquiries.
TikTok said that when they were notified of the complaint, they made the ad unavailable to TikTok users in the UK and EEA because it breached their terms of service. Furthermore, promotion of vapes was prohibited under their Branded Content policy. If the poster had engaged with their disclosure tool as required by their Terms of Service and Branded Content Policy, the content would not have been permitted to be posted.
Assessment
Upheld
The ASA was concerned by BMORvape’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquires and told them to do so in future.
CAP Code rule 22.12 reflected a legislative ban contained in the Tobacco and Related Products Regulations (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. The rule stated that, except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that were not licensed as medicines were not permitted in newspapers, magazines and periodicals, or in online media and some other forms of electronic media. It further stated that factual claims about products were permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control.
The CAP guidance on “Electronic cigarette advertising prohibitions” (the Guidance) explained that the prohibition on ads in “online media and some other forms of electronic media” reflected the legal prohibition on ads in “information society services”. The Guidance indicated that ads placed in paid-for social media placements, advertisement features and contextually targeted branded content were likely to be prohibited.
We considered whether TikTok was an online media space where such advertising, using factual claims only, was permitted. We understood that, while promotional content was prohibited on retailers’ own websites, rule 22.12 specified a particular exception that the provision of factual information was not prohibited. The basis of the exception to the rule was because consumers had to specifically seek out that factual information by visiting the website. The Guidance stated that, in principle, there was likely to be scope for the position relating to factual claims being acceptable on marketers’ websites, to apply to some social media activity. A social media page or account might be considered to be analogous to a website and able to make factual claims if it could only be found by those actively seeking it.
We understood that public posts could be seen by anyone who visited the TikTok website on a web browser and by any users of the app. It was possible for public posts from a TikTok account to be distributed beyond those users who had signed up to follow the account due to TikTok’s algorithms and account settings. We considered that was consistent with content being pushed to consumers without having opted-in to receive the message it contained and therefore it was not equivalent to actively seeking out information about e-cigarettes. Given that characteristic, we considered that material from a public TikTok account was not analogous to a retailer’s own website and that material posted from such an account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes. This means that neither promotional nor factual content was permitted.
We considered that advertising content from Amelia Beavis’s TikTok account was similarly not analogous to a retailer’s own website and that material posted from that account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that the restriction that applied to online media under rule 22.12 was applicable and neither promotional nor factual content was permitted.
Ads (b), (c) and (d) were posts on the BMOR vapes TikTok account, which promoted that e-cigarette brand. Ad (a) featured the influencer recommending the vapes she had been sent. We considered that the gifting of free e-cigarettes constituted a payment to the influencer. Text below the video stated “’bmorvape_official so tasty #ad” and “paid partnership”. We considered that this established that the posts were marketing communications falling within the remit of the CAP Code.
We considered whether the ads directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes were prominently featured in the ads, which also made reference to the number and quality of the puffs of the e-cigarette and promoted particular flavours. In ad (a), the influencer also recommended a flavour she had tried, compared the product favourably with another brand and stated that she would include a link to the advertiser below the video. We therefore considered that the ads contained promotional content for the product and consequently the restriction that applied to online media under rule 22.12 was applicable.
Because the ad had the direct or indirect effect of promoting e-cigarettes which were not licensed as medicines in non-permitted media, we concluded that it breached the Code.
The ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
Action
The ad must not appear again in the form complained about. We told BMORvape that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines should not be made from a public TikTok account. We referred the matter to CAP's compliance team.
