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.
Under rule 22.5, marketing communications must not contain medicinal claims unless the product is authorised for those purposes by the Medicines and Healthcare products Regulatory Agency (MHRA). While e-cigarettes may be presented as an alternative to tobacco, marketers must do nothing to undermine the message that quitting tobacco use is the best option for health.
Until 8 November 2018, the CAP Code also prohibited ads from making health claims about e-cigarettes. Following a public consultation, CAP removed the prohibition on health claims, due to sector-wide changes. While the outright prohibition has been lifted, marketers may only make health claims if they hold robust, product specific, supporting evidence and certain types of claims are likely to remain problematic.
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.
- What is a health claim?
- What health claims can I make about e-cigarettes?
- What is a medicinal claim?
- Can I make smoking cessation claims?
- Can I quote health claims made by public bodies?
- Can I feature health professionals?
What is a health claim?
What health claims can I make about e-cigarettes?
While there is no longer an outright prohibition on health claims for e-cigarettes, there are limitations on when they can be made and certain types of claims are unlikely to be permitted.
CAP has not approved any claim or type of claim and marketers must hold robust, product-specific, evidence to substantiate all claims. Where a claim is made for a brand or range, it should be based on evidence for that entire brand/range. Supporting material which describes the general benefits of using e-cigarettes rather than smoking tobacco is unlikely to be considered sufficient to support a claim about a particular product or brand, even if it is authored by a credible body.
As always, the ASA will assess complaints and supporting evidence on a case-by-case basis. Marketers are advised to consider CAP’s guidance on substantiation for health claims for an idea of the type and level of evidence likely to be required by the ASA.
In terms of the type of claims that might be achievable, CAP understands that the consensus among public health experts is that e-cigarettes are less harmful than smoked tobacco, but not “safe”, that the evidence doesn’t support any positive health benefits from vaping other than as an alternative to tobacco and that there is no evidence of a significant health benefit from using e-cigarettes alongside tobacco. As such, claims of absolute safety, positive health benefits and claims that explicitly encourage use of e-cigarettes alongside tobacco are all unlikely to be considered acceptable.
Marketers are therefore strongly advised against making claims like “healthy”, “not harmful”, “good for you”, “safe” , “use with tobacco” or “vape as well as smoke”.
What is a medicinal claim?
A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind.
Rule 22.5 prohibits e-cigarette ads from making medicinal claims, unless the product concerned is authorised for those purposes by the Medicines and Healthcare products Regulatory Agency (MHRA).
The most common medicinal claims in ads for e-cigs, are those referring to smoking cessation or reduction. Any claim that an e-cigarette is capable of helping users to stop smoking, or reduce the amount they smoke, will be considered medicinal claims and will therefore be prohibited in all ads, unless the specific product in question is authorised for that purpose by the MHRA.
Examples of other claims likely to be considered medicinal - and therefore prohibited - are “Soothes the throat”, “Helps stop cravings”, “A remedy for your lungs”, and “relieves the symptoms of asthma”. If marketers are unsure whether a claim is likely to be considered medicinal, they are advised to contact the MHRA.
Can I make smoking cessation claims?
Smoking cessation and smoking reduction claims are likely to be considered medicinal claims and as such, marketers should not claim or imply that their product can act as a smoking cessation or reduction device, unless the product is authorised for that purpose by the MHRA. E-cigarettes may be presented as an alternative to tobacco, but marketers must do nothing to undermine the message that quitting tobacco use is the best option for health.
Marketers should also avoid any claims which could be interpreted as implied smoking cessation claims. The ASA has upheld complaints about a number of ads for e-cigarettes which referred to “Stoptober”, “Switchtober” and similar. The ASA has ruled that such references are likely to be interpreted as implying the product was associated with, or endorsed by, the NHS campaign “Stoptober” and that they were therefore suitable for use as smoking cessation devices (1111 EC Services Ltd, 12 February 2014, Dardam Services Ltd, 29 January 2014).
The ASA also considered the claim “Kicks Butt” to be an implied smoking cessation claim, given that 'kick' had connotations of quitting or beating an addiction, and was commonly used in phrases such as "kick the habit". They were also concerned that the claim might imply the product was associated with the smoking prevention campaign "Kick Butt" and that the product was therefore suitable for use as a smoking cessation device (Necocigs, 5 February 2014).
Marketers should also be aware of the potential for images to make implied smoking cessation claims. For example, the ASA ruled that an image of a match with a cross through it was likely to imply consumers would no longer need matches to light their cigarettes and as such, considered the image to constitute a smoking cessation claim (Dardam Services Ltd, 29 January 2014).
Can I quote health or medicinal claims made by public health bodies?
Medicinal claims remain prohibited in ads for e-cigarettes in the absence of a relevant MHRA license, regardless of whether a third party – however reputable – has published a medicinal claim about e-cigarettes.
In terms of featuring health claims, CAP is aware that many public health bodies, including Public Health England and the Royal College of Physicians, have made favourable statements about the potential health benefits of e-cigarettes and understands marketers may wish to repeat or reference these in their ads. The ASA is likely to regard such claims as being implied claims about the advertised product/s. For example, if an ad for an e-cigarette references a public health report that states “e-cigarettes are safer than tobacco”, the ASA is likely to expect the marketer to demonstrate that the claim can be substantiated in relation to the advertised product/s.
Can I feature health professionals?
Marketers are prohibited from using health professionals to endorse e-cigarettes under rule 22.6. As such, marketers are advised against featuring any claims made by, or testimonials from, health professionals, or featuring anything which could imply such endorsement.