Advertising under the Tobacco Products Directive

By Paul

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.

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):

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.

Government ‘Plans’

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.