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.

Rule 22.12 prohibits ads which have both the ‘direct’ and ‘indirect’ effect of promoting unlicensed nicotine-containing e-cigarettes from appearing in certain media.

This means that even ads which don’t specifically refer to or feature any nicotine-containing e-cigarettes ("vapes") or e-liquids could still be considered to have the effect of indirectly promoting unlicensed nicotine-containing e-cigarettes, in breach of rule 22.12 (Grey Haze Online Ltd, 20 December 2017).

As such, marketers must ensure that ads for non-nicotine containing vapes, for example, in media in which unlicensed nicotine-containing products are prohibited, do not have the indirect effect of cross-promoting a prohibited product.  It is also possible that an advertiser of an unrelated product could breach the prohibition on indirectly promoting unlicensed, nicotine-containing e-cigarettes.

Marketers are advised that even ads which promote non-nicotine containing products could be considered to have the effect of promoting nicotine-containing products, if they are compatible for use with nicotine (Vape Station, 16 August 2017).  In practice, this means that an ad for any e-cigarette which is compatible for use with nicotine-containing e-liquid could be considered problematic under rule 22.12, even if it is marketed as being for the consumption of non-nicotine containing e-liquid.

While not an exhaustive list of the ways in which content could be considered to cross-promote unlicensed-nicotine containing products, ads which feature any of the following are likely to breach the prohibition on indirect promotion:

  • A brand or range name under which a nicotine-containing e-cigarette is sold.
  • An identifiable unlicensed nicotine-containing e-cigarette.      
  • A strapline, celebrity, licensed character or branding which is synonymous with an unlicensed nicotine-containing product.
  • A direct response mechanic relating to a nicotine e-cigarette.   In practice this means that banner ads, for example, which link directly to pages or sites where nicotine products can be bought, are unlikely to be acceptable.

See also: Electronic cigarettes: Overview and Electronic Cigarettes: Media Prohibitions

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