Two TikTok posts, promoting Vaporesso brand e-cigarettes:
a. A TikTok post from the account of Ethan Overton (@ethanovertonn), posted on 26 May 2023. The video showed a box containing a Vaporesso LUXE XR e-cigarette being opened. The audio stated, “So today a little random present came through the door. This is the Vaporesso XR, and this isn’t just your standard reusable vape. In the package it comes with an extra pod, charging cable and of course the vape itself. It’s up to you what flavour you want to pick, and whether you want it to be a tobacco liquid or not [...] Very nifty bit of kit. […] The Vappresso Luxe XR. Link in bio.” Text at the bottom of the video stated “#ad #vaporesso #luxex #vaporessoluxe”. TikTok’s “Paid Partnership” label was seen beneath the hashtags.
b. A TikTok post from the account of Lucky Ben (@luckyyben), posted on 10 April 2023. The video showed Lucky Ben and a friend discussing the Vaporesso LUXE XR e-cigarette, including saying, “It’s got the leak resistant technology audio and it’s got the coil compatibility” and “Flavour boosting […] This is new on the market right now […] Check the link in the bio, people.” The speech also appeared as on screen text. Text at the bottom of the video stated “@Vaporesso #vaporesso #luxexr #vaporessoluxexr”.
The ASA challenged whether the ads breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
Vaporesso said the posts had been removed.
Ethan Overton said the post had been removed.
TikTok said ad (a) was not a paid-ad, but Branded Content. The promotion of vapes was prohibited under their branded content policy and the ad had been removed. They said ad (b) was User Generated Content and the user had not engaged the Branded Content toggle. The user had deleted the post.
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 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 the @ethanovertonn and @luckyyben TikTok accounts was similarly not analogous to a retailer’s own website and that material posted from those accounts 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.
We understood from Ethan Overton’s video in ad (a) that the brand had sent the e-cigarettes to the influencer, which constituted a payment to the influencer. We noted the post was tagged “#ad”, “#vaporesso” and “#vaporessoluxe”, and was labelled as a paid partnership. We considered that statements such as “this isn’t just your standard reusable vape”, “it comes with an extra pod, charging cable and of course the vape itself”, “It’s up to you what flavour you want to pick, and whether you want it to be a tobacco liquid or not”, “leak resistant technology”, “coil compatibility” and “Flavour boosting”, which described the features of the products, and that text such as “#vaporessoluxe” and “#vaporessoluxexr” had the appearance of brand and marketing slogans and hashtags. Moreover, we considered that the similarity of the hashtags “#luxex” and “#vaporessoluxe” in ad (a), and “#luxexr” and “#vaporessoluxexr” in ad (b) indicated that the posts were part of a wider and coordinated marketing approach.
We therefore considered that ads (a) and (b) 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, which also made reference to the technological features and available flavours of the product. We also considered that statements such as “Link in bio”, in ad (a), and “Check the link in the bio, people” in ad (b) expressly directed viewers to the brands website. 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 must not appear again in the form complained about. We told Vaporesso that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that were not licensed as medicines should not be made from a public TikTok account.