Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
As with all age-restricted products, there are strict rules around the advertising of e-cigarettes, to protect children and young persons, both in terms of the content of ads and their placement.
The following guidance applies to marketing communications in permitted media or those not caught by the media prohibitions – some example cases included may pre-date the media prohibitions and are included for illustration only.
- Don’t feature anyone who is, or seems to be, under 25
- Don’t include content likely to be of particular appeal to under 18s
- Target ads responsibly
Don’t feature anyone who is, or seems to be, under 25
Ads which fall within the scope of Section 22 must not feature anyone playing a significant role or using an e-cigarette if they are, or appear to be, under the age of 25 (rule 22.10).
The ASA ruled that several ads for Hubbly Bubbly Ltd breached rule 22.10 by featuring people – all of whom were using e-cigarettes – who did not appear to be over the age of 25 (Hubbly Bubbly Ltd,10 June 2015). Given that it can be difficult to establish whether someone ‘appears’ to be under the age of 25, marketers are strongly advised to avoid featuring anyone who is at risk of appearing under 25 either using an e-cigarette or in a significant role.
Don’t include content likely to be of particular appeal to under 18s
Ads for e-cigarettes and their components are also prohibited from featuring anything likely to be of particular appeal to people under the age of 18, under rule 22.9.
Marketers should avoid anything likely to reflect or be associated with youth culture, any characters likely to be of particular appeal to under 18s and anyone behaving in an adolescent or juvenile manner.
Ads featuring cartoon images of Santa, a gingerbread man and an elf were considered to have been of particular appeal to children, in breach of rule 22.9, due the combination of the fact that they were characters children would be familiar with and the style of the images being very ‘child-friendly’, rather than more suitable for an adult audience (Fischen Medical Ltd, 15 February 2017).
The ASA also ruled that several online ads for an e-cigarette brand were irresponsible, because they featured celebrities which the ASA considered were likely to be of particular appeal to children and presented models in a way they considered was reminiscent of young urban fashion. The ASA was also concerned that the ads depicted people who appeared to be under the age of 25 both in significant roles and using e-cigarettes (Hubbly Bubbly Ltd, 10 June 2015).
Target ads responsibly
Ads for e-cigarettes must be targeted responsibly; they must not be directed at under 18s through the selection of media or the context in which they appear and no medium should be used if more than 25% of its audience is under 18 (rule 22.11).
When advertising on social media (see Electronic cigarettes: Media prohibitions), marketers are strongly advised against relying solely on self-reported age data, given it is easy – and not uncommon – for young people to lie about their age in order to bypass an ‘age-gate’. As well as taking audience composition-based steps to prevent users who are registered as under 18 from viewing age-restricted ads, the ASA is likely to expect marketers to make full use of any additional tools available to them, such as interest-based targeting and any linked external data, to ensure ads are targeted responsibly. It is the marketer’s responsibility to ensure they make use of the tools available to them on any given platform. Where such tools are available, it is unlikely that the ASA would consider the general 25% consideration in the targeting rule to be relevant, so marketers are advised against relying on this alone.
When it comes to placing ads in outdoor space, the audience is usually considered to be the general population, which isn’t, at the present time, considered to consist of more than 25% of under 18s. Marketers should still take care though and if, for example, the poster site is located near a school, the ASA is likely to consider that to have skewed the audience towards having a higher proportion of children.
Many outdoor media owners apply a ‘100 metre rule’, meaning they will not place certain ads, for example those that are sexually suggestive, or those that promote age-restricted products such as alcohol, gambling or HFSS food product’s, within 100 metres of a school boundary. While this is not an explicit requirement under the CAP Code, the ASA has previously taken the application of the position into consideration when assessing whether an ad has been responsibly placed. As such, marketers are advised to consider this approach when ensuring outdoor e-cigarette ads are not targeted at an audience which consists of more than 25% of under-16s.