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Oliver Bartlett – TV advertising of E-Cigarettes: To regulate or not to regulate?

Introduction

On 9th October 2014 the Committee of Advertising Practice, the body responsible for producing the codes of practice to which broadcast and non-broadcast advertising in the UK must adhere, published new rules permitting the display for the first time of electronic cigarettes (ECs) in broadcast advertising media. This also marked the first time that such products have been explicitly recognised and addressed by the UK advertising regulation. This announcement, made following an extensive consultation exercise by CAP which positively endorsed the proposed set of rules, sets out a brand new regulatory regime specifically for the advertising of ECs in broadcast and non-broadcast media. As of 10 November 2014 this regime is now in force. This piece aims to briefly examine the process by which these rules were adopted, from the previous regulatory landscape, through the consultation exercise, to the adoption of the new rules themselves. Following this it will offer an analysis of the new rules, asking whether controlled regulation of advertising for these devices in place of the previous ban should be welcomed as a step forward in the broader project of tobacco and non-communicable disease control.

 

Previous rules

The regulatory landscape for the advertising of ECs that previously existed in the UK was somewhat confusing. EU legislation laying down the regulatory framework for tobacco products, namely the Tobacco Products Directive (2001/37/EC), did not specifically acknowledge the existence of ECs, or in fact any other form of nicotine containing product. When the UK transposed the ban on the advertising of tobacco in some non-broadcast and all broadcast media laid down by the Tobacco Advertising Directive Directive (2003/33/EC), the previous CAP(non-broadcast) included a ban specifically on all tobacco products, meaning that some limited non-broadcast advertising of ECs had been permitted in the past. However the previous BCAP(broadcast) code included a ban in rule10.1.3 on the advertising of ‘all tobacco products. Also non-tobacco products or services that share a name, emblem or other feature with a tobacco product’. Without anything to legally separate the regulation of non-tobacco products from tobacco products and in the absence of specific UK rules on ECs, this deliberately broader prohibition caught these products, due to their physical resemblance to tobacco containing products. Thus, the advertising of ECs was prohibited in broadcast media in the UK.

Over the last decade, the popularity of ECs has risen dramatically, with around 2.1m people now estimated to be using them in the UK alone. This, according to the consultation documents published by the CAP, combined with the broad ban on tobacco advertising, has caused considerable uncertainty surrounding the promotion of ECs in broadcast media (their advertising had been growing in non-broadcast media for some time), due to the fact that advertising for such products has been ‘inadvertently’[1] caught by the rules on tobacco advertising, leading to several rulings by the Advertising Standard Authority (ASA) that adverts for EC products has breached the codes. This was considered by CAP to be a situation that required swift resolution. Not only did the situation regarding the advertising of products need clarifying for the industry, but furthermore CAP opined that ‘e-cigarettes’ particular characteristics, their potential for harm, for addiction and their relationship with tobacco, carry a reasonable expectation of specific regulatory protection in relation to how they may be advertised’[2] and thus the rise in their popularity amongst the general population demanded prompt regulatory action.

 

CAP Consultation and the New Rules

The Consultation issued by CAP ran from 27th February 2014 until 28th April 2014, and attracted a total of 103 responses from individuals, NGOs, and public authorities and industry. As indicated above, the deliberately wider scope of the broadcast rules was intended to reflect the desire to offer greater protection against the effects of tobacco advertising in broadcast media due to its comparatively greater reach and impact,[3] however CAP’s Consultation recognised that these rules were in place ‘before any marketer had seriously sought to advertise [ECs] in broadcast media’.[4] This created a situation whereby, in the words of the Consultation document, ‘e-cigarettes cannot avoid being caught by the Tobacco prohibitions’,[5] and ‘if left unaddressed, would only continue to cause confusion for the for the public, advertisers and broadcasters’.[6]

Thus, the consultation put forward a completely novel set of rules to explicitly govern the advertising of ECs. The Evaluation of Responses contains a detailed exposition of the views expressed by respondents to the consultation, however the headlines of the results of the consultation are also set out in the Joint Regulatory Statement, where they are set out as part of the justifications provided for the adoption, alteration or non-adoption of each of the rules that were proposed in the consultation.

Most rules initially proposed by CAP were taken forward after the consultation without a great deal of change. One example of a rule adopted with alterations following the points made by respondents is Rule 2, which aims to prevent association of adverts with a tobacco products or brands. This was augmented from its original formulation of a prohibition on showing anything that promotes the use of a tobacco brand, to a prohibition on showing anything that ‘promotes any design, imagery or logo style that might reasonably be associated in audience’s mind with a tobacco brand’.

Although discussed in the consultation, several rules in the new scheme retained the same formulation. For instance, Rule 8, which aims to ensure that adverts do not encourage the take up of ECs by non-users or non-smokers. CAP considered that this did not necessitate the requirement that adverts target only smokers, as per consultation suggestions, since this was thought to be disproportionate to the aim of discouraging take up by non smokers. CAP justified this by stating that it is not their role to mandate the proper use of ECs.

There were further rules, which, following their proposal in the consultation exercise, CAP did not take forward to the final list in the Joint Statement. These included a rule prohibiting adverts from showing ECs from being used in unwise situations, which was dropped because, aside from driving, no other situations in which it would be unambiguously harmful to use ECs was successfully identified by the consultation.

These rules are, as of the 10 November 2014, now in effect, and the first adverts for ECs have already started being shown. The final section of this piece will offer a critical analysis of this new regulatory regime for the advertising of ECs, advancing the argument that setting up such a controlled regulatory regime in the first place may have been misguided.

 

Evaluation of new regulatory regime

A critique of the new regulatory regime adopted jointly by CAP and BCAP might be advanced on three fronts. The first relates to the adoption of the regime in the context of the recent enactment of the new Tobacco Products Directive at EU level. The second relates to the textual strength of the new rules themselves. The third relates to whether advertisements should be permitted at all in view of the lingering uncertainties surrounding the health risks of electronic cigarettes.

The first thing to be observed is that this new regulatory regime is temporary at best. This is because the new Tobacco Products Directive, signed on 3 April 2014 and now in force, and for which transposition is required by 20 May 2016, in Article 20(5) clearly prohibits all forms of cross border commercial communications for electronic cigarettes. CAP’s Joint Regulatory Statement specifically acknowledges that the Directive’s ‘provisions include restrictions on advertising’, and that the new rules for ECs are an ‘interim measure’. Rather coyly, CAP did not choose to acknowledge that their new regulatory regime for EC will have to change following a correct transposition of the Directive into UK law, instead choosing to express their position in the following way:

‘The new CAP and BCAP rules do not pre-empt the requirements of the Directive but serve, at least, as an interim measure. B/CAP understand that the Department of Health is now working to establish what effect the Directive will have in the UK. When more is known about the effect of the Directive in the UK, CAP and BCAP will clarify what role their Codes will have in relation to e-cigarette advertising in the future’[7]

What role indeed? The wording of the Directive’s provisions – ‘audiovisual commercial communications…are prohibited for electronic cigarettes and refill containers’ appears to be fairly unambiguous. It would seem that there is little other conclusion to draw than that the new CAP rules on EC advertising will have to be superseded by further rules to give effect to this wide-ranging ban. True, there is a year and a half before these rules are due to be given force in the UK, which is a fair length of time in itself, but when one considered the lengths that CAP has gone to to engage in consultation and draft a novel set of rules, one must wonder whether a year and a half is long enough, and whether it might not have been a more efficient use of time to indeed pre-empt the (fairly) imminent transposition of the Directive?

The second thing to be observed is that, interim measure or not, the textual strength of the new rules must be questioned, despite the efforts that were made following consultation to add rigour to the proposed wording. Let us examine one point in particular. Rule 3 states that adverts ‘must contain nothing which promotes the use of a tobacco product or show the use of a tobacco product in a positive light. This rule is not intended to prevent cigaret-like products being shown’. Although this intends to prevent tobacco product being indirectly promoted through EC advertisements, there is a case to be made that not even this is strong enough to prevent indirect tobacco promotion. If a product looks like and simulates the characteristics of a cigarette, as indeed many ECs are designed to do with glowing lights and the emission of water vapour ‘smoke’, then the immediate association in the mind of a viewer, even with mandated notifications that the product is an EC, may well be with a traditional cigarette and consequently a tobacco product. The ultimate purpose of tobacco advertisements is to ‘associate a product with psychological and social needs that the consumer wants to fulfil’[8] and ‘influence behaviour both cognitively and affectively by suggesting that there are befits to using the product and by setting up a positive attitude about the product’[9] – in order to achieve this, ‘images, rather than information, are used…to portray the attractiveness and function of smoking’.[10] Thus, the behaviour itself as much as the product is the focus of marketing. Although there is research to show that adolescents who could recall tobacco brands were more likely to demonstrate increased smoking behaviour,[11] thus supporting the CAP ban on brand association, research nonetheless shows that the more that adolescents are exposed to general tobacco marketing itself, the more likely they are to demonstrate smoking behaviour.[12] Thus, any promotional campaign for a tobacco-like product that links the act of smoking to positive emotions, such as EC adverts, may also indirectly promote traditional tobacco smoking behaviour. Thus, by simply showing the use of a cigarette-like object in a prominent way, despite the Rule 3 ban on showing tobacco brands, tobacco containing products, and on promoting tobacco use in a positive light, EC adverts could still continue to promote traditional tobacco smoking as an activity, leading to a consequent impact upon the likely smoking behaviour of those who view the adverts.

A third and final observation is that, by allowing the promotion (and potential consequent normalisation) of a nicotine containing product, the new CAP regulatory regime actually contributes to the perpetuation of nicotine addictions, and the use of a product for which the health consequences are not fully known, even though they attempt to ensure that they do not indirectly perpetuate the harm caused by the promotion of tobacco products. There are mixed view as to whether electronic cigarettes are a helpful additions to the harm reduction strategy. A great deal of the literature salutes electronic cigarettes as offering ‘rare promise’ as an effective smoking cessation tool,[13] and as a products which are far safer than traditional cigarettes and which offer large health gains.[14] However other contributors to the literature emphasis that care should be taken before embracing ECs wholeheartedly – in view of the still uncertain nature of their health consequences and the wide range of regulatory responses that this has elicited from government, it has been pointed out that more research needs to be completed in order to determine which regulatory approach might actually be most suitable.[15] This is particularly when EC are considered from the complex perspective of being devices that purposefully deliver clinically significant doses of a highly addictive substance despite the relative lack of other harmful substances compared to cigarettes,[16] and in the light of evidence continuing to surface which questions the precise safety of ECs in relation to the toxins they potentially contain.[17] Thus, the (apparent) rush of CAP to permit the advertising of electronic cigarettes under a controlled regime, thus effectively endorsing their use by granting industry the possibility of promoting them to consumers, must at least be open to question, if not scepticism.

 

Concluding remarks

The introduction of a new regulatory regime to allow ECs to be shown in television advertising for the first time, and to specifically acknowledge their existence in the UK’s advertising codes has prompted great debate over the appropriateness of allowing such products to be prominently advertised, or even advertised at all. The presence of an imminent ban on their advertising as a result of recent European legislation brings the reasoning underlying the creation of such a regime now all the more into question. This piece has aimed to enlighten readers as to this reasoning from the perspective of CAP, and to subject the rules to close scrutiny regarding their suitability for ensuring that ECs live up to their feted potential as part of tobacco cessation and control efforts, and do not end up throwing the tobacco industry a lifeline through which they can renormalise smoking behaviour. The tentative conclusion that this author reaches is that ECs may well show great promise as a tobacco cessation tool, however governments need to be very carful that the regulatory frameworks that control their use are constructed with the respect that such an as yet still unquantified product deserves, so as not to leave loopholes that can be exploited. Regulatory decisions over such products need to be made weighing all legal, economic, socio-cultural and political factors relevant to the consequences these product might have, and on balance, although caution was shown by CAP, perhaps yet more would not have been unwarranted.

Oliver Bartlett

PhD Candidate, Durham Law School

 

[1] Committee of Advertising Practice, New rules for the marketing of e-cigarettes: CAP and BCAPs Joint Regulatory Statement (2014) available at http://www.cap.org.uk/News-reports/Media-Centre/2014/~/media/Files/CAP/Consultations/ecig%20consultation/Regulatory%20Statement.ashx, 3

[2] Committee of Advertising Practice, New rules for the marketing of e-cigarettes: CAP and BCAPs Joint Regulatory Statement (2014) available at http://www.cap.org.uk/News-reports/Media-Centre/2014/~/media/Files/CAP/Consultations/ecig%20consultation/Regulatory%20Statement.ashx, 3

[3] Committee of Advertising Practice, Consultation on the marketing of e-cigarettes: CAP and BCAP proposals for new rules (2014) available at http://www.cap.org.uk/News-reports/Consultations/Closed-consultations/~/media/Files/CAP/Consultations/CAP%20and%20BCAP%20consultation%20on%20the%20marketing%20of%20e-cigarettes.ashxt, 8

[4] Ibid

[5] Ibid

[6] Ibid

[7] Committee of Advertising Practice, New rules for the marketing of e-cigarettes: CAP and BCAPs Joint Regulatory Statement (2014) available at http://www.cap.org.uk/News-reports/Media-Centre/2014/~/media/Files/CAP/Consultations/ecig%20consultation/Regulatory%20Statement.ashx, 4

[8] C Lovato et al, ‘Impact of tobacco advertising and promotion on increasing adolescent smoking behaviours (Review)’ (2011) available at http://onlinelibrary.wiley.com/store/10.1002/14651858.CD003439.pub2/asset/CD003439.pdf?v=1&t=i31h2tsc&s=cd8db97051fe758a21063d6e50bcda6ef156d4b3

[9] Ibid

[10] Ibid

[11] J Pierce et al, ‘Tobacco industry promotion of cigarettes and adolescent smoking’ (1998) 279 JAMA 511; L Beiner and M Siegel, ‘Tobacco marketing and adolescent smoking: more support for a causal inference’ (2000) 90 American Journal of Public Health 407.

[12] See for example the following review of nineteen longitudinal studies: C Lovato et al, ‘Impact of tobacco advertising and promotion on increasing adolescent smoking behaviours (Review)’ (2011) available at http://onlinelibrary.wiley.com/store/10.1002/14651858.CD003439.pub2/asset/CD003439.pdf?v=1&t=i31h2tsc&s=cd8db97051fe758a21063d6e50bcda6ef156d4b3

[13] Z Cahn and M Siegel, ‘Electronic cigarettes as a harm reduction strategy for tobacco control: A step forward or a repeat of past mistakes?’ (2011) 32 Journal of Public Health Policy 16

[14] P Caponnetto et al, ‘The emerging phenomenon of electronic cigarettes’ (2012) 6(1) Expert Review of Respiratory Medicine 63

[15] JF Etter et al, Electronic nicotine delivery systems: a research agenda’ (2011) 20 Tobacco Control 243

[16] K Bell and H Keane, ‘Nicotine control: E-cigarettes, smoking and addiction’ (2012) 23 International Journal of Drug Policy 242

[17] J McCurry, ‘Japan to investigate e-cigarette safety after formaldehyde findings’ The Guardian (28 November 2014) available at http://www.theguardian.com/society/2014/nov/28/japan-e-cigarette-safety?CMP=twt_gu

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