In four separate judgments released on December 18, 2019, against British American Tobacco UK Ltd (BAT), Ana Vape Lab Ltd., Attitude Vapes and Global Vaping Group Ltd. (trading as Mylo Vape UK), the ASA has found that Instagram posts picturing and marketing vapes constituted unlawful direct promotion to the public of nicotine-containing e-cigarettes that were not licensed as medicines (i.e., e-cigarettes that are consumer products, rather than medicinal products — the advertisements complained about did not contain any medicinal claims, and such claims are not the subject of this article). This was in breach of CAP Code Rules 22.12 and 22.10. This has resulted in a ban on all posts from public Instagram accounts that promote such products, including posts containing purely factual claims, until marketers are able to ensure that the posts will be distributed only to followers of their accounts and will not be seen by others.
The ASA received complaints from various organizations, including Action on Smoking and Health (ASH), Campaign for Tobacco-Free Kids and Stopping Tobacco Organizations and Products (STOP), about multiple posts on the public Instagram pages of four manufacturers of unlicensed nicotine-containing e-cigarettes.
All of the companies had posted images of models using the manufacturers’ products. BAT had also put up images of celebrities such as Lily Allen and Olivia Jade Attwood using its product, a “boomerang” video of a model using its product, and further posts linking its product with Rami Malek’s Academy Awards nomination and to fashion brand House of Holland.
The Regulatory Environment
Rule 22.12 of the CAP Code, reflecting the legislative ban contained in the Tobacco and Related Products Regulations 2016, prohibits the advertisement of unlicensed, nicotine-containing e-cigarettes in marketing communications that have the direct or indirect effect of promoting such e-cigarettes and their components in newspapers, magazines and periodicals, or online media and some other forms of electronic media. However, factual claims about such products are permitted on marketers’ own websites and, in certain circumstances, “in other non-paid-for space online under the marketers’ control.” CAP has also released nonbinding guidance stating that in principle, there is likely to be scope for this exception to extend to social media activity.
Rule 22.10 of the CAP Code bans the use of models smoking e-cigarettes in advertisements where the models are (or appear to be) under 25 years old.
The ASA’s Approach
In relation to these complaints, the ASA primarily considered three (related) issues, namely
- whether the posts constituted direct or indirect promotion of unlicensed nicotine-containing e-cigarettes
- whether a public Instagram page constituted a “non-paid for space online under the marketers’ control,” on which factual information is allowed to be provided
- whether the posts went beyond the provision of factual information and therefore constituted promotional content that was outside of that carve out in any event
In all four judgments, the ASA found that the companies sold products that were not licensed as medicines, and which contained nicotine, and so the advertisements did directly promote unlicensed nicotine-containing e-cigarettes.
The ASA acknowledged that factual claims are permitted to be made in advertisements on marketers’ websites and other non-paid-for spaces online that are under the marketers’ control and acknowledged CAP’s guidance stating that in principle, this exception could extend to some factual claims made on social media. However, the ASA rejected arguments that public Instagram accounts were analogous to manufacturers’ own websites because it is possible for Instagram posts to be distributed “beyond those users who had signed up to follow the account.” This was for two reasons. First, the hashtags contained in such posts can be distributed to any user following or clicking on those hashtags. Second, posts from public Instagram accounts can appear on any user’s Instagram Explore page (where content is automatically generated), albeit only to users who had previously interacted with similar posts. Because through both of these methods, consumers can receive content pushed to them without their having to opt into receiving the marketer’s message, the ASA found that such posts are not equivalent to the active seeking out of those posts on a retailer’s own website. Therefore, neither promotional advertising of the products nor factual content is permitted on Instagram.
The ASA found that in any event, the advertisements contained content that went above and beyond the provision of factual information and was promotional in nature. The use of hashtags such as “#vapelife” (Ama Vape) and “#LiquidsWithAttitude” (Attitude Vapes) was considered to be demonstrative of promotional advertising, as was the use of images of young women and famous figures such as Lily Allen and Olivia Jade Attwood (BAT). Further, the use of a “boomerang” video was considered to be highly stylized and therefore promotional in nature (BAT). The ASA therefore rejected arguments such as BAT’s that its advertisements were factual in nature, focused on the products’ characteristics and aimed to impart factual information regarding the product to the public.
The advertisements were all therefore found to be promotional in nature and not merely factual. Regardless, the judgments state that because Instagram was not a “non-paid-for space under the marketers’ control” for the purposes of the legislation, even posts just containing factual statements could not have been made. A breach of Rule 22.12 was ruled.
In all four judgments, the ASA also found that models used either were or appeared to be under 25 years old and that there was no evidence that the models were 25 or over at the time the advertisement was published. This was in breach of Rule 22.10.
In all four cases, the ASA concluded that the advertisements must not appear again in the form complained about. Marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that are not licensed as medicines must not be made from a public Instagram account in the future “unless [the marketer] had taken steps to ensure they would only be distributed to those following their account and would not be seen by other users.” Further, models must not be (or seem to be) under 25, if they are using e-cigarettes or playing a significant role.
These cases provide important clarification about the way in which e-cigarette manufacturers may use Instagram to advertise to the public. The CAP Code is clear in its ban on the promotion of unlicensed nicotine-containing e-cigarettes to the public in online media, but the carve out for the provision of factual information in non-paid-for spaces online under the marketer’s control was previously more of a gray area. The ASA has now clarified that public Instagram accounts are not included in this exception, and so neither promotional nor factual content is permitted to be posted by such accounts. The ASA has also applied its definition of content that is promotional (rather than merely factual) in nature stringently, making it even more difficult to use Instagram as a promotional tool. Manufacturers of e-cigarettes, therefore, are advised to be careful when using the platform, even if just to present consumers with information about the manufacturer’s products.
Sidley Austin LLP provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. Readers should not act upon this information without seeking advice from professional advisers. In addition, this information was not intended or written to be used, and cannot be used, by any person for the purpose of avoiding any U.S. federal, state or local tax penalties that may be imposed on such person.
Attorney Advertising—Sidley Austin LLP, One South Dearborn, Chicago, IL 60603. +1 312 853 7000. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships, as explained at www.sidley.com/disclaimer.
© Sidley Austin LLP