Major new rules for E-cigarettes

13th April 2016

UPDATE

The new regulations are now in place. See CAP’s announcement here. There will be a further consultation and guidance on implementing the rules, so watch this space for more news.

 


 

Since filtering on to the market e-cigarettes have proved a very interesting and often contentious product in advertising terms. After a bit of wrangling, a dedicated section of the BCAP code emerged and, armed with a handful of precedents, we’ve been helping advertisers successfully market their products within the regulations.

 

Things are changing though, quite dramatically and quite soon. On the 20th of May the Department of Health will be implementing the EU Tobacco Products Directive. What this means in practice is that only a select few types of e-cigarette will still be permitted to advertise.

 

Here’s the major new addition to the prohibited categories section of the BCAP code:

 

Electronic cigarettes and refill containers or any advertisement which has the aim or direct or indirect effect of promoting such a product

 

There are further details and very limited exceptions.

 

The main thrust of the rule is to prohibit nicotine-containing e-cigs from advertising unless they have been granted a licence by the MHRA. This covers cartridges, tanks (disposable or refillable), rechargeable and single use e-cigs.

 

So does this mean e-cigs and liquids which don’t contain nicotine can continue to advertise? There is indeed an exception for non-nicotine containing liquids and refill containers, as well as rechargeable e-cigs which can only be fitted with cartridges filled with non-nicotine containing liquids. However, a rechargeable e-cigarette being advertised with a non-nicotine containing cartridge would still be prohibited if a nicotine cartridge could theoretically be swapped in.

 

Things get more complicated with the last few words of the rule: ‘indirect effect of promoting such a product.’ Shops or websites which sell all kinds of e-liquids will be caught here, as will sponsorship livery in motorsport ads, for example. It’s this indirect promotion element which looks like it will be the trickiest to navigate.

 

These are all big changes, but there’s another wrinkle. The Scottish Parliament has passed a bill which contains powers to make regulations to ban the advertising of e-cigarettes that don’t contain nicotine. So we could see a situation where a non-nicotine containing e-cigarette could advertise in England, Wales and Northern Ireland, but not in Scotland.

 

We’ll be keeping a close eye on things so follow our Twitter account or check back regularly for updates. You can read Ofcom’s announcement here and CAP’s report on the current state of play here.