Background
The ASA’s investigation relates to CAP Code rule 22.12, which states 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 which are not licensed as medicines are not permitted in online and some other forms of electronic media. The ad investigated promoted e-cigarettes and should not have appeared on a public TikTok account and in this case, the ASA has not assessed the content of the ad under any other CAP rules.
Ad description
A TikTok post from the account @Panaxhe_ promoting Elf Bar, an electronic cigarette brand, posted on 18 May 2022, featured scenes of a young man going through his day, which included referring to and smoking Elf Bar vapes, showing the product, and stating some Elf Bar brand flavours such as "blueberry" and "kiwi passionfruit". He had written in a notebook “Why I Love My ELF BAR Rechargeable Disposable Pods”. On-screen text stated “RICH FLAVOUR” and “Rechargeable pods save a lot of money” with a heart eyes face emoji.
Text underneath the video stated “Best vapes out there, don’t let the fiends get to it @elfbar_official_global #ELFA #ElfaEcoChoice # SavingMoney #ad Paid partnership”.
Issue
Imperial Tobacco challenged whether the post breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Response
Green Fun Alliance Ltd t/a Elf Bar said they had contacted the content creator and TikTok and asked them to remove the post. They said they had found the video content was inappropriate, did not comply with the brand’s content guidelines, and they believed it did not comply with the Code. They said they monitored and reviewed video content about Elf Bar on online platforms to ensure it met guidelines and regulations.
Elf Bar said they would improve their internal review and monitoring mechanisms to ensure that all online content complied with regulatory requirements. Elf Bar said that as a result of the complaint, they had stopped TikTok content and communications marketing in the UK.
Elf Bar said they had conducted an investigation in-house and with their outsourced marketing operations to understand how the video came to be produced. They said that their outsourced marketing provider had released the video without conducting the necessary checks with Elf Bar. Elf Bar recognised that advertising and marketing content promoting their products produced by third parties was their responsibility. They would review and address their monitoring processes for future video content to ensure compliance with UK laws and regulations.
TikTok noted the video did not appear in paid-for ad space. But because it violated their branded content policy and community guidelines, it had been removed from their platform.
TikTok also said the mechanics of the platform was such that the content might have appeared on an algorithmically driven "For You" feed so that users who did not sign up to follow @Panaxhe_'s account may have seen it (but the content had now been removed). They said users posting on TikTok had the option to restrict content to be seen only by themselves, their "friends" (i.e., people who followed the user), or to "everyone", which would be seen by anyone on the platform (before it was removed).
Assessment
Upheld
The ASA understood that Elf Bar outsourced their marketing to an external provider who created and distributed promotional marketing content on their behalf and sent gifts of free e-cigarettes to social media influencers. We considered that the gifting of free e-cigarettes constituted a payment to the individual featured in the post. Elf Bar also said the post had been released onto TikTok without the necessary checks being conducted by them. We considered that the existence of those checks demonstrated that they exercised a degree of editorial control over the post’s content. Text below the video stated “@elfbar_official_global … #ad Paid partnership”. We considered that the relationship between the parties, along with the references to ‘#ad’ and ‘paid partnership’, established that the post was a marketing communication falling within the remit of the CAP Code.
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, meaning that neither promotional nor factual content was permitted.
We considered that advertising content from @Panaxhe_’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.
We considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes were prominently featured throughout the ad. We considered that the ad was intended to have the appearance of ‘a day in the life’ social media post and that it focused on featuring the man using and referring to e-cigarettes during the day. On-screen text stated “rechargeable pods save a lot of money” and “rich flavour”. We therefore considered that the ad 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 Green Fun Alliance Ltd t/a Elf Bar 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.
