Ad description
A TikTok post from the account @tdvsbackup seen on 23 May 2023 promoted an e-cigarette shop. It featured a man standing in front of shelves of electronic cigarettes. He said, “I just wanted to tell you about these. These are new SKE Amare Crystal. Looking really good. I thought I’d get on and tell you now. They have been on the side for a few hours and some of the flavours are selling out … so I thought I’d let you guys know.”
Issue
The ASA challenged whether the post breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Response
The Disposable Vape Store said they had seen other vape shops advertising on TikTok and so thought it was acceptable. TikTok had advised them that it was unacceptable and that the post would be removed. They were unaware that it was still appearing and removed it when notified of the complaint. They gave their assurance that they would not advertise e-cigarettes on TikTok in future.
TikTok said the video violated their Community Guidelines, which prohibited the facilitation of trade of tobacco products, including vapes or e-cigarettes, and therefore had been removed from the platform.
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 whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. The ad was a post from the TikTok account of an e-cigarette store. Unlicensed e-cigarettes were prominently featured in the ad which presented the “new SKE Amare Crystal”, stated they were “Looking really good ...” and sought to make clear to consumers that “some of the flavours are selling out”. We 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 The Disposable Vape Store 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.
