From 20 May 2016 advertisements with the aim or direct or indirect effect of promoting unlicensed, nicotine-containing electronic cigarettes and e-liquids will be prohibited on television and radio in the United Kingdom. The BCAP Code is being amended to reflect this prohibition and the ASA will enforce compliance with it from that date.
The changes come as a result of requirements in the European Tobacco Products Directive ('the Directive') for restrictions on the advertising of unlicensed, nicotine-containing e-cigarettes. The Directive was agreed by the European Parliament in 2014 and must be implemented by EU member states by 20 May this year. The ban on broadcast advertising will not appear in UK law. Instead the UK government has used powers conferred by the Communications Act 2003 to direct Ofcom and us to implement the prohibitions on broadcast advertising in their respective Codes. Ofcom are making a concurrent announcement which can be found here.
This prohibition will not apply to advertisements for products which do not contain nicotine or for those which are licensed as medicines. Such products will be able to advertise in accordance with the relevant sections of the BCAP Code, however to ensure compliance with the new prohibition, advertisements for such products must not have the aim or direct or indirect effect of promoting a product which cannot be advertised. In due course we will be consulting on guidance for advertisers of non-nicotine products can avoid promoting nicotine-containing products.
The Directive also contains prohibitions on advertisements in non-broadcast media which are being implemented in law by the Department of Health and the Scottish Government. We will make further announcements on the nature of the non-broadcast prohibitions in due course but our best understanding of the likely nature of those prohibitions is summarised in this article.