Ad description
A TikTok post from Izzi Alice Mitchell’s account, @izzialicexo, seen on 18 May 2023 featured an electronic cigarette and the text “Zozoo [sic] drag bar 700 puffs. Grape flavour. Long last flavour. Smooth puff. 10/10”.Text at the bottom of the post stated “#Ad #consistentflavoursmostpuffs #freshzovoo #vapewithzovoo Paid partnership”.
Issue
The complainant challenged whether the post breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Response
ZOVOO (Shenzhen) Technology Co Ltd did not respond to the ASA’s enquiries.
TikTok said the promotion of vapes was prohibited under their branded content policy and the ad was shown in error. The video was deleted by the user on 18 May, the same day the complainant saw the content, and no longer appeared on the platform.
Assessment
Upheld
The ASA was concerned by ZOVOO (Shenzhen) Technology Co Ltd’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries and told them to do so in future.
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 @izzialicexo 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.
Text in and under the video stated “Zozoo [sic] drag bar 700 puffs. Grape flavour. Long last flavour. Smooth puff. 10/10” and “#consistentflavoursmostpuffs #freshzovoo #vapewithzovoo” which had the appearance of brand and marketing hashtags. We considered that this, as well as the references to ‘#ad’ and ‘paid partnership’, 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, which also made reference to the number and quality of the puffs of the e-cigarette and promoted a particular flavour, as well as rating it “10/10”. The influencer had also included brand hashtags which promoted features of the product, such as #consistentflavoursmostpuffs”. 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 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 ZOVOO (Shenzhen) Technology Co 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.
