A TikTok post from Harleigh Perez’s account, @harleighperez, seen on 13 July 2023, featured a video of Harleigh Perez reviewing Elfbar electronic cigarettes sent to her by Cloud City. She explained they “Delivered vapes to your front door and they have a shop in Manchester.” She went on to unbox, vape and review two Elfbar products. She said she loved one of the vapes and that it “Felt so smooth on your throat”. She outlined the number of ‘puffs’ each vape had and said they were rechargeable. She ended the video by saying, “To get your vapes, go onto Cloud City. I’ve tagged them down below … ” A caption on the video stated, “@Cloud City UK #ad #vape #vapehaul #elfbar I did just roll outta bed to film this so please ignore. Paid partnership”.
IssueThe ASA challenged whether the post breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Cloud City Vapez Ltd said a previous employee of the company had contacted Harleigh Perez, but that they could not provide substantive information about that engagement or details about any terms agreed. They confirmed there was currently no commercial relationship between the two parties and that no monetary payment had ever been made to her. They pointed out that, when an influencer promoted a brand on social media, a payment of some form was typically made and they accepted that Ms Perez could have been sent free products. They also said it was a possibility that the former employee and Ms Perez were simply friends. They said they had undertaken a review of their content to ensure all social media posts were in line with the CAP Code.
Harleigh Perez confirmed she had collaborated with Cloud City and provided text message evidence of that. The messages showed that she had been sent vapes by the company for her to promote on social media. Ms Perez said she believed she was allowed to promote vapes on social media as they were a product sold legally within the UK.
TikTok said that the ad, which had already been removed when they were notified about the investigation, appeared as Branded Content. They said their Branded Content Policy prohibited the promotion of vapes and that the ad was in violation of that policy.
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.
The ASA 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.
We then assessed whether the post was a marketing communication that fell within the remit of the CAP Code. The post on Harleigh Perez’s TikTok account, referred to e-cigarette distributor Cloud City Vapez. Text below the video stated, “@Cloud City UK #ad #vape #vapehaul #elfbar” and “Paid partnership”. In addition, we considered the text messages provided to us by Ms Perez indicated that the products had been sent to her for free and therefore constituted a payment to her. We considered that was sufficient to establish a commercial relationship between Ms Perez and Cloud City Vapez. We considered the relationship between the parties, along with the references to “#ad” and “Paid partnership”, established that the post was a marketing communication falling within the remit of the CAP Code.
We then considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes were prominently featured in the ad and were positively reviewed, with recommendations for various flavours being discussed. We therefore considered that the ad contained promotional content for the product and consequently the restriction that applied to online media under rule 22.12 was applicable.
Because the ad had the direct or indirect effect of promoting e-cigarettes which were not licensed as medicines in non-permitted media, we concluded that it breached the Code.The ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
The ad must not appear again in the form complained about. We told Cloud City Vapez UK Ltd and Harleigh Perez 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.