As many of you will no doubt be aware, the UK implementation of the Tobacco Products Directive is coming whether we like it or not. September 3rd saw the closure of the official public consultation on the majority of the implementation regulations. Today saw the publication of additional ‘guidance’ under Article 20 section 5. Specifically all about the advertising portion of Article 20.
Article 20(5) of the Tobacco Products Directive 2014/40/EC requires EU member states to introduce restrictions on the advertising of electronic cigarettes. In the UK, the proposed implementation will consist of changes to the Communications Act 2003, free-standing new regulations and changes by Ofcom (the communications regulator in the UK) to the BCAP Code and Broadcast Code.
What Article 20(5) states:
- commercial communications in Information Society services, in the press and other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers are prohibited, except for publications that are intended exclusively for professionals in the trade of electronic cigarettes or refill containers and for publications which are printed and published in third countries, where those publications are not principally intended for the Union market;
- commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers, are prohibited;
- any form of public or private contribution to radio programmes with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers is prohibited;
- any form of public or private contribution to any event, activity or individual person with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers and involving or taking place in several Member States or otherwise having cross-border effects is prohibited;
- audiovisual commercial communications to which Directive 2010/13/EU of the European Parliament and of the Council applies, are prohibited for electronic cigarettes and refill containers
How the UK Government ‘Interprets’ the Article
Across the EU, e-cigarettes and refill containers cannot be advertised or promoted, directly or indirectly:
- on TV or on-demand TV
- on radio
- through information society services (including internet advertising and commercial e-mail)
- in certain printed publications – newspapers, magazines, periodicals and similar publications
- sponsorship of television and radio programmes which promotes e-cigarettes
- product placement of e-cigarettes
- sponsorship of activities or individuals that involve or take place in two or more EEA states (cross-border)
The UK Government rightly points out that these restrictions are not as limiting as the restrictions that apply to tobacco, but this snippet gives me a glimpse into their addled thinking (emphasis mine):
The proposed rules would not prevent public health campaigns or local stop smoking services messaging aimed at helping people make the switch from tobacco to e-cigarette use. These are not ‘commercial communications’.
So a vape shop (which of course will cease to exist under the TPD anyway) can’t advertise or promote e-cigarettes, but yet public health and stop smoking services can, do you not see the blatant hypocrisy there? An unwanted device that has been authorised by the MHRA is going to be freely “promoted” by public health and stop smoking services while devices that everyday vapers use can’t be.
From the text, they are going to be leaving leaflets and posters alone (which will no doubt include bill boards). They’ll also leave alone any material that gives “information that gives detail about a product, or how to operate” but is not ‘promotional’ in nature. Everything else, is as the EU says so.
As you can see, everything that has been defined within the TPD will be imposed on the UK with some ‘minor’ exceptions. Shop posters (as if there’ll be any shops once the TPD is implemented in May 2016) and billboards ‘fall outside the scope of this Directive’ meaning that the terminology used by the EU was thin and allowed a little bit of wiggle room by the UK Government. But not much. They do clearly state (in black and white) that “there is no intention to go beyond the requirements imposed by the Directive”, which is all fine and dandy but those eurocrats knew exactly what they were doing when the revised TPD was drafted. There is no room to manoeuvre.
The full draft of the advertising restrictions is here, the overview is here and the e-mail address to respond to this guidance is here. I would strongly suggest that you take some time to draft a response to this, citing just how ludicrous it is to ban advertising on a product that has the potential to change so many lives. My e-mail was sent less than an hour ago.
Dear Sir / Madam,
In June 2014 I decided to make a substantial change to my life. After 20 years of smoking up to 60 tobacco cigarettes per day I discovered, almost by accident one of the most (if not the most) efficient way of reducing, and effectively preventing my tobacco consumption using an electronic cigarette (e-cigarette). Not only did I swiftly reduce my smoking habit from 60 a day to less than 10 in one day, after three days I had switched completely. My previous attempts to stop smoking resulted in dismal failure either immediately, or after several days. After 18 months I am still tobacco-free. The use of my e-cigarette has not only allowed me to remain tobacco-free, but it has also prevented me from relapsing back to tobacco unlike the more conventional therapies.
The proposed restrictions on advertising, as drafted will restrict products that have been deemed to be at least 95% safer than tobacco. Products that have been consumer driven instead of being driven by either the pharmaceutical or tobacco industries. The products will continue to improve, driven by both the consumer and the impending regulatory structure, despite the recent medical authorisation for a tobacco industry product – the e-Voke. The restrictions, as defined will not only damage businesses that retail the effective products, simply because they will not be allowed to inform smokers of the potential benefits of a substantially less harmful product. It will limit the amount of information available to smokers wishing to quit or switch to a product that, having been driven by the consumer market, is not only effective but fun to use; a medicinal product such as the e-Voke from British American Tobacco, based on e-cigarette technology from 2009/2010 will not have the same appeal to smokers at best, and at worst be so ineffective that it would not prevent relapse.
The plans of the UK Government to take a ‘minimal’ approach to Article 20(5), while good intentioned, does not ultimately serve the millions of smokers that may decide to switch to an alternative that, if left with a light touch regulatory framework, may serve to increase the decline in smoking prevalence throughout the UK. The current structure for broadcast and non-broadcast advertising and promotional material under the ASA Guidelines has served to limit what can, and cannot be advertised throughout those mediums.
By imposing further restrictions on how a consumer driven product is advertised or promoted, leaving only an ineffective, dull product is contradictory and is tantamount to sending the wrong message about a product, that is currently used by 2.6 Million current and former smokers throughout the UK, saying that it is both ineffective and as harmful as tobacco cigarettes.
I am strongly opposed to the proposed restrictions on advertising as drafted as the only purpose they serve is to hand the tobacco industry the power to create and subsequently advertise products that are not as effective as the products currently available from smaller, independent businesses. The industry, and the community that has grown around e-cigarettes is unlike any other market segment.