Background
Summary of council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A TikTok post from George Baggs account @georgebxggs, posted on 23 June 2022, featured a video of George Baggs. He walked towards the camera and held up a HQD WAVE disposable electronic cigarette still in its packaging, while on-screen text stated “Matching my outfit with my new HQD v@pe”. As the video went on, George got dressed while smoking an electronic cigarette. Text underneath the video stated “Always get asked to do these sorta vids so here ya go :) #HQDVIP #uk #trending”.
Issue
The ASA challenged whether the post breached the Code by:
1. promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok; and
2. featuring someone with an e-cigarette who appeared to be under 25 years of age.
Response
1. HQD Tech Ltd t/a HQD Tech UK (HQD Tech) provided a copy of their contract with George Baggs and the official brief of his relationship with them. They said the contract included a clause that required his consent to conform with a platform’s paid product endorsement policies. They said those requirements (known as ‘do’s and don’ts’) stated he was not to prompt non-smokers to trial the product, not to promote smoking generally, or the product as an alternative to cigarettes, and not to use any filters. HQD Tech said all agreed contracts were put in place between George Baggs and his management agency who signed off all content that he produced.
HQD Tech said that while George Baggs was shown with a vaping product and the caption stated “Matching my outfit with my HQD v@pe”. They did not believe he was encouraging viewers to try the product; there were no links to purchase the product, or information as to where the product could be purchased and the post did not mention the product type, price, instructions for use or flavours. They also said the ad was not targeting specific customers to try the product. HQD Tech said if consumers were to subsequently go on to their website, they would find factual information. They said the contract between George Baggs and HQD stated that, with the exception of the ‘do’s and don’ts’, the artistic direction of the content was George Baggs’ responsibility and that of his management.
They said they had removed all content posted by George Baggs until the conclusion of the ASA investigation. They also said they had additional policing on all content from third parties and were taking additional steps to ensure compliance with contracts and follower demographics, to ensure younger audiences were not being targeted through the content.
Off Limits Entertainment, responding on behalf of George Baggs, said they had contacted HQD Tech and would ensure that in future George Baggs would not promote any vape campaigns on his social media channels.
TikTok said the video was user generated content and it did not appear in paid-for ad space, neither was it disclosed as branded content. They said that on being notified of the complaint, they had made the content unavailable to users in the UK as it was a breach of their Terms of Service, which prohibited the advertising of cigarettes and tobacco products (which included e-cigarettes).
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 George Baggs’ account may have seen it (but the content was now unavailable on the "For You" feeds of UK users). They said that 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.
2. HQD Tech said that George Baggs was born in 2003 and was 19 years old when the ad was posted.
Assessment
1. Upheld
The ASA understood there was a commercial agreement between HQD Tech and George Baggs which stipulated that George Baggs would post about two new products on TikTok during a period of two months (27 May 2022 to 30 July 2022). We were provided with a copy of the briefing sheet provided by the agency and the contract between HQD Tech and George Baggs. The brief stated that the content was to be shot in George Baggs’ usual style and how he would showcase his vaping experience, with suggested ideas for the shoot including as “a day in the life” and colour matching with the vape. The focus was to be on the products’ unique selling points, such as flavours and numbers of puffs, working in line with the platform guidelines, and to keep the post light and fun.
The contract stated that the agency, on behalf of HQD Tech, had the right request re-shoots if the content did not adhere to the brief and that the content could be used across various social media platforms and digital channels. It also included restrictions on George Baggs mentioning competitor brands for a certain period of time after the campaign began and provided for the payment of a fee to him. We considered that those aspects of the agreement established that HQD Tech had sufficient control over the content of George Baggs’ posts on TikTok, in conjunction with a payment arrangement, for them to be considered marketing communications falling within the remit of the CAP Code. As such, they were jointly responsible for ensuring marketing activity conducted on George Baggs’ account promoting HQD Tech’s products was compliant with the 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 George Baggs’ TikTok account was similarly not analogous to a retailer’s own website. 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.
The ad featured prominently an unlicensed e-cigarette with George Baggs holding the packaged e-cigarette up close to the camera, with the text “warning this product contains nicotine” on the packaging being briefly shown. He was also featured smoking the e-cigarette and holding it in his mouth. On-screen text stated “Matching my outfit with my new HQD v@pe” which we considered was a reference to the blue colour of the e-cigarette with the blue T-shirt George Baggs was wearing. The caption beneath the ad stated “Always get asked to do these sorta vids so here ya go :)”. The video featured George Baggs getting dressed while smoking or holding the e-cigarette. We noted that was significant in the post without being directly related to the product itself. We therefore considered that the ad contained promotional content for the product.
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.
On that point, the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
2. Upheld
Notwithstanding that we did not consider the ad was permitted on TikTok as set out in point 1, CAP Code rule 22 .10 stated that anyone shown using e-cigarettes or playing a significant role must neither be, nor seem to be, under 25. George Baggs, a public figure, known from the television programme Gogglebox, was shown smoking an e-cigarette in the video and we understood that he was aged 19 at the time the ad was posted. We therefore concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rule 22.10 (Electronic cigarettes).
Action
The ad must not appear again in the form complained of. We told HQD Tech Ltd t/a HQD Tech UK and George Baggs 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 also told HDQ Tech that if advertising in media permitted under rule 22.12, they must not show people who are, or seem to be, under 25 years of age, using e-cigarettes or playing a significant role.
