A TikTok post from Lucci Love’s account, @ lucci.love98, posted on 19 April 2023. The video showed Lucci Love opening a box of Geek Bar vapes and saying, “…I just want to come on here and tell you what has come in the post today […] they are Geek Bars, the new and improved ones, so I’m going to be doing some content over the next few days and weeks and whatnot, I’m going to test them all and let you know how they get on. They are actually 600 puffs and it's, like, a consistent thing where the flavour stays throughout the whole 600 puffs. So not only is it aesthetically pleasing […] they've actually made the battery last a lot longer as well. Shout out to Perry at Fresh Vapes.” On-screen text seen throughout the video stated “GeekBar Vapes”. Text at the bottom of the video stated “#e600mesh #geekbar #freshgeek #ad”.
The ASA challenged whether the ad breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Geekvape Electronic Cigarettes (UK) Ltd did not respond to the ASA’s enquiries.
TikTok said the promotion of vapes was prohibited under their branded content policy, and the ad had been removed. They said they would review Lucci Love’s other posts.
The ASA was concerned by Geekvape’s lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 (Unreasonable delay). We reminded them of their responsibility to respond promptly to our enquiries, and told them to do so in future.
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 “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 or 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 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 considered that advertising content from @lucci.love98’s TikTok account was similarly not analogous to a retailer’s own website and that material posted from that account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that the restriction that applied to online media under rule 22.12 was applicable, and neither promotional nor factual content was permitted.
In the post, Lucci Love stated, "I just want to come on here and tell you what has come in the post today" and "Shout out to Perry at Fresh Vapes" and we therefore understood that she had been sent and gifted the e-cigarettes, which constituted a payment to the influencer. The post was also tagged as “#ad”, was labelled as being a “paid partnership” with the brand, and on-screen text stated “#GeekBar Vapes” throughout the course of the post. We also considered that statements, such as “new and improved”, “the flavour stays throughout the whole 600 puffs”, and the hashtags ““#e600mesh”, “freshgeek” and “#geekbar” had the appearance of brand and marketing slogans and hashtags.
We therefore considered that the post was a marketing communication falling within the remit of the CAP Code.
We considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes were prominently featured in the ad, which also made reference to the product’s technological features, aesthetic design and the available 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 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 must not appear again in the form complained about. We told Geekvape Electronic Cigarettes (UK) 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. We referred the matter to CAP’s Compliance team.