Ad description
TikTok posts promoting e-cigarettes:
a. The account @asmxlls seen on 23 May 2023 featured the influencer offering vapes from Vapes Bars as a prize to passers-by who correctly completed truth or dare challenges. Text under the post stated, “’Would you play this game while on a date’ #foundmary #foundmary600 #ghost #ghostvapes #vapesbars”.
b. The account @silvanuslnd seen on 23 May 2023 featured the influencer offering vapes from Vapes Bars as a prize to passers-by who correctly answered general knowledge questions. Text under the post stated, "Guess the country!!! #foundmary #foundmary600 #diamond #diamondvapes”.
c. The account @perkioldn seen on 23 May 2023 featured the influencer offering vapes from Vapes Bars as a prize to passers-by who correctly answered general knowledge questions. Text under the post stated, "General knowledge: #foundmary600 #foundmary #vapesbars".
d. The account @angelysiaa seen on 23 May 2023 featured the influencer looking for, finding and smoking her electronic cigarettes. Text stated, “comes with loads of different shapes and sizes”, “So many different flavours”, “so smooth on the throat” and “GO GET ONE NOW”. The soundtrack to the video featured the line “… you’re a cigarette, I’m a smoker”. Text under the video stated, “introducing @Wehavefoundmary use my discount code: VAPES BARS 4 for 15% off. #vapesbars #foundmary #lostmary #vapefoundmary #diamond #diamondvape #ghost #vapeghost”.
e. The account @nathanbyrnee seen on 1 June 2023 featured Nathan Byrne showing viewer a box of electronic cigarettes, then holding and polishing a single electronic cigarette. Text stated, “Diamond, the new way to vape”, “The perfectly balanced airflow delivers a smoother and more satisfying throat hit”, “Flavoured bombshell with up to 600 consistent puffs” and “Why do you need Crystal if you can have Diamond Bar?”. Text under the video stated, “#ad Diamond Vape bars! The new way to vape! Available in the link in my bio #vapesbars #diamond #diamondvapes … #vaping”.
Issue
The ASA challenged whether the ads breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Response
Vapes Bars Ltd said they had contacted the influencers involved and asked them to take down the promotional videos featuring Vapes Bars products. They said they would actively monitor the situation in future to ensure that the content was removed from social media platforms.
Angelysiaa said that this was a gifted collaboration and she had received no payment from Vapes Bars Ltd. She said there was no contract for the partnership. She said that, in future she would not receive gifts of any vape or post on her social media promoting or encouraging the sales of vapes.
TikTok said that the videos violated their Community Guidelines, which prohibit the facilitation of trade of tobacco products including vapes/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 that advertising content from an influencer’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 that the gifting of free e-cigarettes constituted a payment to the individuals featured in the posts. Vapes Bars Ltd had also said they would ask the posters to take down the promotional videos and actively monitor content on social media platforms. We considered that the existence of checks and the act of a removal request demonstrated that they exercised a degree of editorial control over the post’s content.Ads (a), (b) and (c) featured influencers @Asmxllls, @Silvanuslnd and @Perkioldn all offering vapes from Vapes Bars as a prize to passers-by who correctly answered general knowledge or riddle questions, or completed truth or dare challenges. The ads also featured the same or similar product, brand or marketing hashtags such as “#foundmary #foundmary600 #ghost #ghostvapes #vapesbars” #diamond or #diamondvapes”. We considered this indicated a wider and coordinated marketing approach.Ad (e), from @Angelysiaa and ad (f) from @nathanbyrne, featured the same and similar hashtags. Text in ad (e) included a promotional discount code “introducing @WehavefoundMary. Use my discount code: VAPES BARS 4 for 15% off” and text in ad (f) stated “#ad .. Available in the link in my bio”.
We considered that the relationship between the parties, along with the discount link, reference to ‘#ad’, the hashtags about various vapes brands, and the indication of a coordinated marketing approach established that these 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. In ads (a) to (c) @asmxlls, @silvanuslnd and @perkioldn offered them as prizes. In ad (d) @angelysiaa offered a discount code and referred to features of the e-cigarette, such as “comes with loads of different shapes and sizes”, “So many different flavours” and “so smooth on the throat”. She encouraged consumers to purchase the product: “GO GET ONE NOW”. In ad (e) @nathanbyrnee stated, “Diamond, the new way to vape” and “Why do you need Crystal if you can have Diamond Bar?”, and referred to features of the product, such as “The perfectly balanced airflow delivers a smoother and more satisfying throat hit”, “Flavoured bombshell with up to 600 consistent puffs”. He invited consumers to purchase the product via a link in the bio.
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 ads 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 ads breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
Action
The ad must not appear again in the form complained about. We told Vapes-Bars 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
