A day after reports emerged that the government is considering a ban on single-use vapes as early as next week, the Advertising Standards Authority (ASA) has taken it's own initiative. It's published details of a whopping four upheld rulings against vaping companies, acting as a reminder to manufacturers, retailers and influencers about the strict rules on advertisements of tobacco and related products.
The ads in question consisted of eight TikTok posts, summarised as follows:
- A post featuring an influencer rapping about Innofly HK's WAKA vapes;
- A post featuring a man standing in front of shelves of e-cigarettes, promoting The Disposable Vape Store;
- Five posts all featuring different influencers. Three of them offered Vapes Bars vapes as a prize to passers-by who correctly completed a challenge or answered general knowledge questions. The fourth smoked an electronic cigarette and the fifth showed a box of electronic cigarettes, holding and polishing one of them; and,
- A post by an influencer featuring a Zoovoo electronic cigarette and an accompanying caption.
The ads appeared between March and June 2023. An investigation into these ads were launched following challenges from the ASA and a complainant.
Response by the brands
Innofly HK said they did not contact the influencer directly and did not have a relationship. They did not provide details of agencies they worked with, or details about the communications between the agency and the influencer. The influencer said that she was contacted by the brand and told that she "could make a post if she wanted to".
The Disposable Vape Store said that they thought their advertising was acceptable as they saw other vape shops run similar ads.
Vapes Bars Ltd said they asked the influencers involved to take down the content and said that they would monitor the situation to ensure compliance.
Zoovoo did not respond. Tik Tok, in all four occasions, said that the videos violated the Community Guidelines and that the videos had been deleted.
The ASA upheld all four rulings and used the same explanation to justify its decision.
ASA referred to CAP Code rule 22.12 which mirrored a ban on the advertisements of unlicensed, nicotine-containing products further to the Tobacco and Related Products Regulations 2016. The rule bans marketing communications across digital and printed media that promote nicotine-containing e-cigarettes if they were not licensed as medicines. The exception to that are communications exclusively targeted to the trade, and factual claims on marketer's own websites and non-paid-for online space under the marketer's control.
ASA also referred to the CAP guidance on "Electronic cigarette advertising prohibitions" which indicate that paid-for social media placements and contextually targeted branded content were likely to be on the wrong side of the law.
In assessing the ads, ASA considered whether TikTok was an online media space where factual claims would be permitted. The factual claims exception is based on the fact that consumers have to specifically seek out the information by visiting the website. Therefore, there could be a possibility that the exception applied to TikTok. However, the ASA did not find TikTok to be exempt. This is because it is possible for TikTok posts to be distributed beyond the followers of a particular account and therefore was not equivalent to actively seeking out information about e-cigarettes.
ASA also considered that the content from the influencers were not comparable to those from the marketer's own website. As such, neither promotional nor factual content was permitted. This was supported by appearance of brand hashtags, featuring of e-cigarettes and references to its durability and quality.
The Tobacco and Related Products Regulations 2016 generally prohibit advertising of nicotine-containing e-cigarettes unless they are licensed as medicines. Some social media platforms, such as TikTok, also prohibit facilitation of trade of tobacco products and vapes. Brands can display ads for such unlicenced, nicotine-containing products only on their own websites, if the claims relate to facts of the product, rather than promotions.
Another issue at hand is the appeal of colourful, flavoured, disposable vapes to children. This is the core reason behind recent reports about the ban on single use vapes. Advertisers must therefore ensure that their communications do not target children, feature under 25's or include content that is likely to particularly appeal to children. Innofly HK ad acts as a good example, as the rapping style used by the influencer is likely to be associated with youth culture and be of particular appeal to children.
The same level of compliance is expected of influencers marketing vapes. Influencers must ensure that their posts adhere to the described rules. An influencer's role as an ambassador, or lack of knowledge of the relevant rules, will not prevent the ASA from taking action.
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.
https://www.asa.org.uk/rulings/innofly-hk-ltd-a23-1200395-innofly-hk-ltd.html https://www.asa.org.uk/rulings/the-disposable-vape-store-a23-1199005-the-disposable-vape-store.html https://www.asa.org.uk/rulings/vapes-bars-ltd-a23-1199003-vapes-bars-ltd.html https://www.asa.org.uk/rulings/zovoo--shenzhen--technology-co-ltd-a23-1198565-zovoo--shenzhen--technology-co-ltd.html