a. A TikTok post from the account of Chantel Sturge (@chantelsturge1), posted on 25 February 2023. The video showed two boxes containing Voopoo e-cigarettes being opened. On-screen text superimposed over the video stated “Unbox the VOOPOO’s new double injection design […] 1 day charging = 2 days vaping […] Anti leakage structure”. Text at the bottom of the video stated “Unboxing my @voopootech¬uk #showoffyourvoopoo #voopoo …” When the text was expanded, it continued “#voopoodoric #doric #foryourpage AD”.
b. A TikTok post from the account of Charlie Morrison (@tappyboi), seen in February 2023. The video showed the Voopoo product being used in various places throughout the course of a day. On-screen text stated “hello and welcome to a day in my life with the Voopoo ARGUS Z […] I’ve been using this product for a few weeks now and it’s so good […] you can also enter a competition by posting a photo or video with your own VooPoo product and using the hashtag #showoffyourvoopoo and winners will receive that ARGUS Z as a prise [sic]”. Text at the bottom of the video stated “Head over to @voopootech¬uk to enter the giveaway!! #showoffyourvoop…”
When the text was expanded, it continued “oo #voopoo #voopooargus #argusz”.
c. A TikTok post from the account of Lorenx (@lorenhx), seen in February 2023. Lorenx, addressing the camera, stated, “…I've been using this electronic cigarette […] it's rechargeable, very easy to use […] this is one where you put the e-cig liquid in […] and then it’s just dead simple to use, like, you’re ready to go […] it's rechargeable, it’s dead small […] yeah, I’d recommend it to everybody because it actually is, like, really really good […] anybody wanting to buy one, I'll tag below the name they’re called Voopoo […] but yeah, check them out, anybody, I think they have a competition on at the minute, where you can win one, so keep an eye out for that as well”. Text at the bottom of the video stated “@voopootech¬uk #showoffyourvoopoo #voopoo #voopooargus #argusz”.
The ASA challenged whether the ads breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
ShenZhen Woody Vapes Technology Co. Ltd, t/a Voopoo International Inc. did not respond to the ASA’s enquiries.
Chantel Sturge said that she had not been aware of the restrictions on the promotion of e-cigarettes and their components on TikTok. She apologised, and deleted the post. Her representatives confirmed the brand had sent her the e-cigarettes.
Charlie Morrison said that he had not specified in the video that the product contained nicotine.
TikTok said their Community Guidelines prohibited content that facilitated the trade of tobacco products, including vapes, and said the posts from the “@tappyboi” and “@lorenhx” accounts were user-generated content, in violation of their guidelines. They were therefore, shown in error and have been removed from the platform. They said they would review other posts by all three creators.
The ASA was concerned by Voopoo International’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 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 @chantelsturge1, @tappyboi and @lorenhx TikTok accounts was similarly not analogous to a retailer’s own website and that material posted from those public 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 Chantel Sturge’s response to the ASA and from the 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” and “@voopootechuk”. We considered that text such as “Unbox the VOOPOO’s new double injection design”, “1 day charging = 2 days vaping”, “Anti leakage structure”, which described the features of the products, and “#showoffyourvoopoo” and “#voopoodoric” had the appearance of brand and marketing slogans and hashtags. Moreover, the hashtag “#showoffyourvoopoo was also common to ads (a), (b) and (c) which indicated that the posts were part of a wider and coordinated marketing approach.Charlie Morrison (@tappyboi) and Lorenx (@lorenhx) made reference in their posts to a competition to win a VooPoo vaping product, alongside the hashtag #showoffyourvoopoo. We considered that signposting a promotional competition indicated the posts were part of a wider and coordinated marketing approach. Ads (b) and (c) both stated “#showoffyourvoopoo”, “#voopoo” and “#voopooargus”, and ad (c) also tagged “@voopootech_uk”. We considered that text had the appearance of brand and marketing slogans and hashtags, particularly when as they appeared across different posts.
We therefore considered that ads (a), (b) and (c) 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 described the features and available flavours of the product. 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 ShenZhen Woody Vapes Technology Co. Ltd t/a Voopoo International Inc. 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.