Legal changes to the advertising of electronic cigarettes
17 February 2016
Later this year there will be changes in UK law in relation to electronic cigarettes (e-cigarettes) and, specifically, how they may be advertised. Our Copy Advice team has recently experienced an uplift in enquiries about the effect of this legislation. We are providing this update to offer what clarity we can at this stage, however the legislative picture is still developing and is complex because of the products which are (and are not) affected, the varying likely impact of the law on ads in different types of media and because of the differing approach being taken by the Scottish Government to the rest of the UK. None of the relevant legislation is yet finalised and the summaries below represent only our best understanding of the likely legal outcomes at this stage; it does not constitute legal advice and any aspect of it may change. We and the ASA will be able to provide more clarity once the relevant legislative process has concluded.
All relevant specific and general rules in the CAP and BCAP Codes, continue to apply to e-cigarette ads at this time.
In 2014 the European Parliament agreed a revised Tobacco Products Directive (TPD) which applies across the EU and which contains various provisions in relation to the regulation of e-cigarettes in the round, including how they may be advertised. Member states are required to bring that Directive into effect by 20 May 2016.
At a UK-wide level that process (including the non-advertising aspects) is being handled by the Department of Health in England (DoH). In relation to advertising, DoH have stated that they are taking only a minimal approach to the implementation and have no intention to either capture more products, or restrict advertising any further than is required by the Directive.
However the Scottish Government has announced powers to implement further restrictions on the advertising of e-cigarettes than those which will apply in the rest of the UK.
Our understanding of the likely default whole-UK position is outlined below. The additional restrictions likely to be implemented in Scotland are dealt with in their own paragraph.
Products which are and are not caught by the Regulations (except Scotland)
We understand that the UK regulations are intended to apply only to nicotine-containing e-cigarettes, nicotine-containing e-liquids and components of those products. We therefore understand that e-cigarettes which can only be used for the consumption of non-nicotine-containing e-liquid are likely to not be subject to legal prohibition. We understand that the Regulations do not apply to products licensed as medicines. The definition being used in Scotland is more comprehensive; see below.
How is advertising likely to be affected?
The Department of Health has said that products subject to the regulations will be prohibited by law from being advertised or promoted, directly or indirectly:
- on TV or on-demand TV
- on radio
- internet display advertising
- Text message
- in newspapers, magazines, periodicals – except trade publications
- via certain types of sponsorship and product placement.
We understand that limitations to the scope of the Directive mean that, except in Scotland, the following media are unlikely to be subject to an advertising ban:
- Outdoor posters and bus posters
- Direct hard copy mail
Marketers’ own websites
We understand that marketers will be permitted to maintain websites but that the law may limit the type of content that is acceptable. We are awaiting further clarification from the Department of Health. We are not yet aware of how the legislation in Scotland might impact websites.
The Health (Tobacco, Nicotine, etc. and Care) (Scotland) Bill (‘The Bill’) was introduced to the Scottish Parliament in June 2015. We note that the Bill includes both nicotine and non-nicotine vapour products within its scope. This Bill contains powers to make regulations to ban advertising of e-cigarettes beyond the scope of the Directive. The Scottish Minister for Public Health (Maureen Watt) has stated “The bill builds on that by taking powers to prohibit domestic advertising, including billboards, posters and leaflets.” More information can be found on the Bill’s webpage.
The Scottish legislation will not apply to ads for products licensed as medicines.
Marketers who advertise in Scotland or who have questions about the likely legal status of marketing communications which will cross between Scotland and the rest of the UK are advised to seek legal advice.
As stated, this information is based on our best understanding of the likely impact of the law on the advertising of electronic cigarettes in the UK, but any aspect may change as DoH finalises how they may, and may not, be advertised from 20 May 2016. We therefore advise that all marketers of these products ensure they are signed up to receive the CAP Update and follow @CAP_UK on Twitter, so that they are notified when updates and final information about how the Code will be affected are published.