A paid-for TikTok ad for Daniels Vapes, seen in July 2023, featured a video depicting someone asleep. A thought bubble above their head depicted their dream. The scene inside the bubble panned around a shop and showed shelves of brightly coloured e-cigarette products, while music played.
The ASA challenged whether:
1. the ad breached the Code by directly or indirectly promoting unlicensed nicotine-containing e-liquids and their components in online media; and
2. TikTok had breached the rules for Video Sharing Platforms regulated by statute by including an ad for electronic cigarettes.
1. Daniels Vapes said when they had uploaded the video they had simply been following a trend on TikTok and had not realised that it represented a breach of the Code. They believed they or another account user had accidentally marked the video as a paid ad.
2. TikTok said they took their responsibilities as a Video Sharing Platform (VSP) very seriously and were committed to keeping users safe from inappropriate paid advertising. They said the promotion of e-cigarettes was prohibited under their Advertising Policies and confirmed that the ad had been removed from the platform. They had established that an element of their moderation systems did not identify the ad as a vape promotion and prohibit it accordingly. Vapes might appear to resemble pens, highlighters, lipstick tubes and even toys and so at times raised challenges for moderation models. Since the ad in question had a very small circulation, generating fewer than 1,000 views before it was removed, it did not trigger additional rounds of moderation. TikTok added that they were continuing to review and enhance their moderation systems as part of their internal quality assurance process. They were also committed to engaging with external bodies to identify regulatory challenges and develop partnerships to educate TikTok users about the risks of such products.
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.
The CAP guidance, “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. Under the CAP Code, marketers were responsible for ensuring that their ads were compliant. The ASA considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes featured prominently in the ad, which was for an e-cigarette store. We 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. We acknowledged that Daniels Vapes had placed the ad in error. However, because the ad had the direct or indirect effect of promoting e-cigarettes that were not licensed as medicines in non-permitted media, we concluded that it breached the CAP Code.
On that point, the ad breached CAP Code (Edition 12) rule 22.12 (Electronic cigarettes).
VSP Appendix rule 31.3 stated that advertisements for electronic cigarettes and electronic cigarette refill containers were prohibited. That rule applied to advertising that was “marketed, sold or arranged” by VSPs that were subject to statutory regulation in the UK under the Communications Act 2003 (as amended). As a VSP in UK jurisdiction, TikTok was responsible for ensuring that ads appearing in paid-for space on its platform complied with the Appendix rules.
We acknowledged that TikTok’s moderation system had on this occasion not identified the ad as an e-cigarette promotion and that once notified they had taken swift action to remove it. However, because the ad was for a prohibited product, we concluded that it breached the VSP Appendix.
On that point, the ad breached VSP Appendix rule 31.3.
The ad must not appear again in the form complained about. We told Daniels Vapes 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 appear in online media. We reminded TikTok of their responsibility under the VSP Appendix to ensure that ads for electronic cigarettes did not appear on their platform.