On 1 February 2017, the Committee of Advertising Practice ("CAP"), the body responsible for writing and maintaining the UK advertising codes, introduced a new rule in relation to e-cigarette advertising in its non-broadcast code of advertising ("CAP Code").
The new rule reflects changes to the law which came into force in the UK on 20 May 2016 via the Tobacco and Related Products Regulations 2016 (the "TRPR") (which implements the revised European Tobacco Products Directive 2014 (the "Directive")) i.e. the legislative bans on advertising of certain e-cigarette products across certain media platforms.
New rule 22.12 of the CAP Code prohibits the direct and indirect promotion of unlicensed nicotine containing electronic cigarettes, e-liquids and their components in newspapers, magazines, periodicals, online media and some other forms of electronic media.
The prohibition extends to any e-cigarettes which can be used to consume both nicotine and non-nicotine e-liquids, even if the advert focuses solely on the non-nicotine e-liquids. There are also a number of ways in which advertising could be caught by the "indirect effect" element of the prohibition. For example, if the same brand or range name advertises a non-nicotine product that is strongly associated with a nicotine product.
As mentioned above, not all forms of media are caught by this prohibition. Certain non-broadcast media such as outdoor advertising, posters on public transport within the UK, cinema, direct hard copy mail, leaflets, bespoke private correspondence with a consumer and trade marketing communications currently fall outside the scope of the ban. However, such advertising must still comply with all other relevant rules in the CAP Code.
Products licensed as medicines by the MHRA and solely non-nicotine products (e.g. cannot be interchanged with nicotine products; are not associated with nicotine brands etc.) also fall outside of the prohibition. However, as above, advertising for such product must still comply with all other relevant rules in the CAP Code.
Factual information about the product on an advertiser's own website and in certain cases, in non-paid for media controlled by the advertiser is also permitted. However, content which is promotional in nature is likely to be caught by the prohibition.
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