Ad description
A TikTok post from the account @vanillaspit posted on 24 March 2023 that featured the influencer rapping about WAKA vapes “Got an email from a brand the other day, ‘Really wanna work with you, what do you say?’, ‘What are you paying and what have you got? If your product is decent, I’ll give it a shot.’ They say, ‘WAKA Bar, it’s a brand new vape. Give it a try, it’ll be great. It’s dainty and small, it’ll fit in your pocket, so many different flavours, you shouldn’t knock it.’ I’m like, ‘I don’t vape but I’ll give it a shot. I’ll disappear in big clouds acting all hot.’ Accepted the deal and of course the pay. I’m getting the bag here, what can I say?” Text under the video stated “#WAKAbar #WAKASopro #WAKASofit #fyp”.
Issue
The ASA challenged whether the ads breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Response
Innofly HK Ltd said they were taking all necessary steps to ensure marketing practices being conducted by their marketing agencies abided by ASA guidelines, which included not using TikTok as a marketing tool. They said they did not contact the influencer (@vanillaspit) directly and did not have a direct or active working relationship with the influencer.
They did not provide further details of the agencies they worked with, nor any further information about communication the agencies may have had with the influencer, such as their brief or any other marketing instructions they had given or requested.
@vanillaspit said she was contacted by a company offering to send her vapes, who said she could make a post if she wanted to.
TikTok said the video violated their Community Guidelines, which prohibited the facilitation of trade of tobacco products, including vapes/e-cigarettes. They said the user had deleted the post.
Assessment
Upheld
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 the @vanillaspit 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 understood the brand had sent and gifted the e-cigarettes to the influencer. In the post, she stated, “Got an email from a brand the other day, ‘ Really wanna work with you, what do you say?’, ‘What are you paying and what have you got? If your product is decent, I’ll give it a shot.’ … Accepted the deal and of course the pay. I’m getting the bag here, what can I say?”. Although we recognised it was a general comment on commercial relationships between brands and influencers, we also considered it was a reference to a commercial agreement between the brand featured in the TikTok post, Waka Bar and the influencer. Text under the video stated “#WAKAbar #WAKASopro #WAKASofit #fyp”, which had the appearance of brand and marketing hashtags. We considered those features established that the post was a marketing communication falling within the remit of the CAP Code.We considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes were prominently featured in the ad and it stated “WAKA Bar, it’s a brand new vape. Give it a try, it’ll be great. It’s dainty and small, it’ll fit in your pocket, so many different flavours, you shouldn’t knock it”. We considered it promoted particular features of the e-cigarette, such as its small size and the range of flavours on offer, and also expressly encouraged consumers to try it. The influencer also indicated she had been asked to promote the brand and had included brand hashtags such as #WAKASopro and #WAKASofit. 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 Innofly HK Ltd 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.
