Ad description
Two TikTok posts seen in July 2023 which promoted e-cigarettes:
a. A post on the IVG TikTok account showed boxes of vapes and other merchandise. Text below the video stated, “Can we just #Ivgbar #unboxing #foryoupage #foryou #fypage #discover #unbox #vapebar”.
b. Another post on the IVG TikTok account stated, “IVG Bar Flavour Test Time!” and featured a woman holding several of the bars and saying, “The IVG bars are finally in the house. Let’s go do a flavour test.” Various people who seemed to be in the company’s offices gave positive reactions when they tried the vapes. Text under the video stated, “#lvg #flavourtest time #vapebar#lvg #fyp #fpr you #unboxing # #vapedevice #ivg #vapecommunity".
Issue
The ASA challenged whether the posts breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.Response
Acme Vapes Ltd said they were not active on TikTok. They said they did not know the posts were appearing as they were very old posts and had contacted TikTok and asked for them to be removed.
TikTok said that the advertiser’s account was still active and that when they were notified of the complaint, they made the ad unavailable to TikTok users in the UK and EEA because it breached their terms of service. Furthermore, promotion of vapes was prohibited under their Branded Content policy. If the poster had engaged with their disclosure tool as required by their Terms of Service and Branded Content Policy, the content would not have been permitted to be posted.
Assessment
Upheld
CAP Code rule 22.12 reflected a legislative ban contained in the Tobacco and Related Products Regulations (TRPR) on the advertising of unlicensed, nicotine-containing e-cigarettes in certain media. The rule stated that, except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that were not licensed as medicines were not permitted in newspapers, magazines and periodicals, or in online media and some other forms of electronic media. It further stated that factual claims about products were permitted on marketers’ own websites and, in certain circumstances, in other non-paid-for space online under the marketer’s control.
The CAP guidance on “Electronic cigarette advertising prohibitions” (the Guidance) explained that the prohibition on ads in “online media and some other forms of electronic media” reflected the legal prohibition on ads in “information society services”. The Guidance indicated that ads placed in paid-for social media placements, advertisement features and contextually targeted branded content were likely to be prohibited.
We considered whether TikTok was an online media space where such advertising, using factual claims only, was permitted. We understood that, while promotional content was prohibited on retailers’ own websites, rule 22.12 specified a particular exception that the provision of factual information was not prohibited. The basis of the exception to the rule was because consumers had to specifically seek out that factual information by visiting the website. The Guidance stated that, in principle, there was likely to be scope for the position relating to factual claims being acceptable on marketers’ websites, to apply to some social media activity. A social media page or account might be considered to be analogous to a website and be able to make factual claims if it could only be found by those actively seeking it.
We understood that public posts could be seen by anyone who visited the TikTok website on a web browser and by any users of the app. It was possible for public posts from a TikTok account to be distributed beyond those users who had signed up to follow the account due to TikTok’s algorithms and account settings. We considered that was consistent with content being pushed to consumers without having opted-in to receive the message it contained and therefore it was not equivalent to actively seeking out information about e-cigarettes. Given that characteristic, we considered that material from a public TikTok account was not analogous to a retailer’s own website and that material posted from such an account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that neither promotional nor factual content was permitted.
Ads (a) and (b) were posts on the Acme Vapes TikTok account, which promoted that e-cigarette brand. Text below the videos stated, “#lvg #flavourtest time #vapebar#lvg #fyp #fpr you #unboxing # #vapedevice #ivg #vapecommunity" and “Can we just #Ivgbar #unboxing #foryoupage #foryou #fypage #discover #unbox #vapebar”. We considered that this established that the posts were marketing communications falling within the remit of the CAP Code.
We considered whether the ads directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes were prominently featured in the ads, and ad (d) featured positive reviews and recommendations of various flavours. We therefore considered that the ads contained promotional content for the product and consequently the restriction that applied to online media under rule 22.12 was applicable.
Because the ads had the direct or indirect effect of promoting e-cigarettes which were not licensed as medicines in non-permitted media, we concluded that they breached the Code.The ads breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
Action
The ads must not appear again in the form complained about. We told Acme Vapes Ltd that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines should not be made from a public TikTok account.
