Vaping products have become a mainstay of modern society and have become more widely accepted even by official bodies as an alternative to smoking that, as evidenced by Public Health England in 2015, contain 95% fewer harmful compounds than analogue cigarettes. Despite the reported difference in risk, vaping products often find themselves thrown into the regulatory pool with long standing tobacco products like cigars, cigarettes and rolling tobacco.
The restrictions on tobacco advertisement have been long understood, with only older people in our communities still able to remember cigarette brands would advertise everywhere, from TV to billboards, and ran events like giveaways and competitions to drive brand awareness and ultimately sales. The ASA states that:
“The Tobacco Advertising and Promotion Act 2002 prohibits press, poster and most advertising on the internet for tobacco products, outlaws the free distribution of tobacco products and coupons, and bans tobacco retailer ads targeted at the public. Displays of tobacco products and prices on an advertiser’s own website where such products are offered for sale are allowed.”
Vaping however is a far newer phenomenon, and faces its own set of restrictions first laid out by the Tobacco Products Directive (TPD) and subsequent Tobacco and Related Products Regulations (TRPR) in 2016. Vaping advertisements are now carefully policed in the UK by the Advertising Standards Agency (ASA), and Child Assault Prevention (CAP) – both of which rely on reports of non-compliance from Trading Standards, as well as from the public and those within the vaping industry.
In any case, a reported breach of the regulations will be assessed, and if indeed found to be non-compliant, the source of the advertisement will face varying degrees of reprimand. This could range from simply amending or removing the offending material, to heavy fines and restrictions in cases where initial warnings are ignored or where severe breaches have occurred.
Variations do exist however between promotions in different public spaces. Online restrictions differ quite dramatically from offline, which can often cause confusion for those attempting to effectively promote their vaping brand. Read on as we explore the key dos and don’ts so you can better understand how to promote your brand legally.
There are some restrictions that are shared by all vaping products no matter where they are sold – this applies mostly to the depictions on packaging and labels. When designing vape packaging, you must:
- Ensure the nicotine warning occupies 30% of the packaging
- Ensure the design on any labels conforms to the size restrictions
- Ensure there are no images or design elements present that appeal to children
- Ensure there are no depictions of food stuffs that might lead the consumer to believe they are present in the product
- Ensure all product information, ingredients, allergens, and associated hazard warnings are present and easily accessible to the consumer
It should be noted that in the case of shortfill or similar 0mg e-liquids that are nicotine free, many of the rules within TPD and TRPR do not apply, such as bottle size limits and the ability to be offered as a free sample in promotions. They are still bound by many of the same advertising standards however, particularly those focussing on responsibility and protecting children, as governed by CAP.
This is where vape retailers face the most scrutiny, promotion of vaping products online is a minefield of compliance pitfalls, however there is proven leniency granted in many circumstances where the breach is minor, or the brand responsible acts responsibly in their removal or amendments of the offending material.
The ASA states that:
“The Tobacco Products Directive that came into effect in the UK in 2016 affects how these products can be advertised. Ads for nicotine-containing e-cigarettes not licensed as medicines are prohibited on on-demand television, in newspapers and magazines, on the internet, in emails and in text messages.”
While there are strict rules in place for online promotion, the ASA has stated that “Marketers’ own websites may present factual information about products but may not be used to promote or advertise them.”
This means that at least within their own online store, vaping brands can present banners and other creative assets that can present information about their products, providing it is purely factual. Without a medical licence you cannot promote a vaping product as a cessation tool, despite the growing evidence of their positive influence on smoking quit attempts. You cannot advise or tell consumers what to do with the product beyond factual vaping guidance, and you absolutely cannot make any medical claims. For example, a web banner stating “this vape will help you quit smoking” would be illegal if the manufacturer does not have a medical licence for the product in the ad. “Vaping is an alternative to smoking” would be permitted however as it is factual and nothing more.
Leniency for your own on-site promotions does permit the use of food related images for product listings, provided they are only representative of the product in question and do not appear to convince the consumer that the food is actually present in the e-liquid itself. Disclaimers can help with establishing this despite weakening marketing messages.
Any vaping ad online must never incite urgency to buy the product, and cannot promote discounts “was £25, now £15” for example would not be permitted as it promotes a discount that incites urgency encouraging the consumer to buy an addictive product sooner. Factual statements of price, even a discounted one, can only be given in black and white terms e.g. “This vape is £15” – never compared with the previous cost.
Content like product descriptions, SEO metadata and even blogs must also be created with compliance in mind. Blogs that describe medical benefits of vaping or its power as a quitting tool, however impartially written and well-sourced, must never internally link to a product as it is perceived as promotion off the back of claims the retailer cannot themselves verify without 3rd party information. Product descriptions cannot utilise over promotional language, so “a deliciously tantalising strawberry vape bursting with juicy fresh flavour” is non-compliant – “A sweet strawberry flavoured vape” is more factual and not overly promotional, and is therefore compliant. The same applies to any metadata or other on-page copy.
The rules are even stricter for advertising vaping products beyond your own website. Pay Per Click (PPC) marketing is strictly prohibited in any form, and affiliate banners must comply with strict design restrictions in-line with those already discussed.
Paid promotion is not permitted in any form beyond affiliates, and even then, great care must be taken when promoting in this way. It is advisable to only utilise responsible and established affiliate agencies, preferably with an understanding of the restriction already to avoid landing in hot water because of a mistake they made without you knowing.
Prospecting and cold emails must strictly follow the rules we have explored above, no promotion, only facts, nothing targeting children. This can severely limit the effectiveness of email campaigns for recruiting new customers. Vaping brands stand there best chance of drawing new users in by using organic SEO techniques.
Existing user databases though, comprised of account-holding customers who have opted-in for email marketing can be sent slightly more promotional material, although caution is best applied. The ASA understands that in this context, the person is already using nicotine and therefore the promotion carries less risk of causing harm. That does not mean that you can go in guns blazing – try to remain as compliant as you can at all times.
Social media is a relatively barren landscape for a responsible vape retailer. Facebook, Instagram, Twitter and LinkedIn are all cautious about vape promotion following a number of incidents where brands were seen to use celebrity endorsement to promote, in some cases to younger audiences.
Engagement is generally very low and the algorithms in place work against most nicotine product promotions. Factual posts and non-product posts can be made, but the content must still follow general guidelines for compliance. The bad history between social platforms, vaping brands and the ASA have created a generally low-performing method of promotion, that is best reserved as a contact point for customers at best.
TikTok has taken an expectedly relaxed stance by comparison, and allows pretty much limitless vape promotion through influencers and beyond. This may not continue indefinitely however, as the disposable vape youth access crisis has intensified, and the spotlight is on TikTok, whose content was found to have inspired 45% of underage vapers to start using disposables in a recent Trading Standards and Action on Smoking and Health (ASH) survey, as a part of the ongoing investigation into curtailing the disposable vaping issue.
The game is a little different when it comes to offline vape promotion, messaging, imagery and claims are all treated slightly differently than their online counterparts. Contrary to the above online regs, the ASA states that “ads for nicotine-containing e-cigarettes not licensed as medicines are permitted on outdoor posters and on the sides of buses not travelling outside of the UK, on leaflets, in direct hard copy mail and in the cinema.”
Posters, leaflets, window stickers, shelf wobblers, cash mats and of course product displays to name just a few can be freely used for promotion to consumers in-store. PoS materials like these can demonstrate messages of price reduction, and can even suggest a person may have abetter chance of quitting smoking if they use a particular vaping product. The reasoning for this stark difference to the online regs is not clearly defined and has been the subject of debate and scrutiny in equal measure. Many online only retailers see the imbalance as an unfair advantage grated to bricks and mortar retailers, leading to much bad blood and an industry culture that sees brands regularly reporting competitors to the ASA or similar authorities in hopes they will face reprimand.
In the public Eye
Provided they cannot be seen outside of the UK, vapes can be promoted on billboards, busses, taxis and more. Despite this freedom, many smaller vaping brands cannot afford this level of premium marketing, and means that the most publicly placed advertisements are for vaping products owned exclusively by big tobacco corporations with sufficiently deep pockets.
Some see this again as an unfair advantage granted to businesses that have profited for years off of addiction, and have simply switched products to promote a cleaner image, while still selling all their traditional tobacco goods. Despite this, the laws are set and unless an independent vaping company can find the budget to support mass marketing campaigns of this scale, it remains a promotional platform reserved for only the most affluent brands.
Don’t Risk Non-Compliance
Even in the cases we have explored where more freedom to promote vaping products exists, the golden rule should always be to remain as compliant as possible. Responsibility is paramount, and the retailer’s duty of care to their customers should always trump profit. Ultimately any breaches will be swiftly acted upon, so the risks are best left untaken except for cases where special permissions have been granted or substantial evidence is present to validate any claims made about a product.
The ASA’s final word is:
“All ads for vaping and e-cigarettes that appear in media that is permitted should still be socially responsible, not targeted at children and should not make unauthorised health and/or safety claims.”
Our regulatory and compliance team here at NextGEN360 ensure that we are always up-to-date and working in-line with the very latest legislation, so our branded products from EDGE and LiQuid are always fully compliant and promoted responsibly. If you want to build your own vaping brand, get in touch with us today and you can benefit from our years of experience in the industry and ensure your brand is grown in a responsible way that will help you avoid legal hot water!