Article 20(5) of the Tobacco Products Directive 2014/40/EU requires EU Member States to introduce restrictions on the advertising of electronic cigarettes. In the UK, these rules have been implemented in the Communications Act 2003, changes by Ofcom (the communications regulator in the UK) to the BCAP Code (UK Code of Broadcast Advertising) and Broadcast Code and in the Tobacco and Related Products Regulations 2016.

What Article 20(5) states

Member States shall ensure that:

(a) 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

(b) commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers, are prohibited

(c) 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

(d) 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

(e) 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

What the Article means

From 20 May 2016, across the EU, e-cigarettes and re-fill containers can’t be advertised or promoted, directly or indirectly:

on TV or on-demand TV

on radio

through information society services (this includes for example internet advertising and commercial e-mail)

in certain printed publications – newspapers, magazines, periodicals and similar publications

The Article also requires us to prohibit:

sponsorship of television and radio programmes which promotes electronic cigarettes

product placement of electronic cigarettes

sponsorship of activities or individuals that involve or take place in 2 or more EEA states or otherwise have cross border effects

These restrictions are more limited than those which apply to tobacco advertising, where all forms of advertising and sponsorship by tobacco companies are prohibited.

Guidance and interpretation

The following guidance and interpretation represents the views of the Department of Health, ultimately only the court can decide on the interpretation of the law.

Summary table of the requirements

Use this table with the accompanying legislative provisions.

Media type Legislative position Implementing measure Broadcast TV advertising and sponsorship Prohibited Implemented through the BCAP Code and Broadcast Code Broadcast TV product placement Prohibited Communications Act 2003 as amended by the Tobacco and Related Products Regulations 2016 Radio advertising and sponsorship Prohibited Implemented through BCAP Code and the Broadcast Code On-demand television advertising, sponsorship and product placement Prohibited Communications Act 2003 as amended by the Tobacco and Related Products Regulations 2016 Newspapers, magazines and periodicals – except trade publications and third country publications Prohibited Tobacco and Related Products Regulations 2016 Internet display advertising, email and text message advertising - except trade publications and third country publications Prohibited Tobacco and Related Products Regulations 2016 Sponsorship of activity/individuals involving or taking place in several Member States or otherwise having cross-border effects Prohibited UK Tobacco and Related Product Regulations 2016 Company’s own websites, and other non-paid-for online space under their control No advertising or promotion but factual information about products, factual ‘how to’ videos permitted UK Tobacco and Related Product Regulations 2016 Retailer sites No advertising or promotion but factual information about products, factual ‘how to’ videos and sales lists permitted UK Tobacco and Related Product Regulations 2016 Blogs/tweets/independently compiled, non paid for reviews Permitted E-cigarette trade press and trade to trade communication Permitted Cinema, fax, outdoor posters, posters on sides of buses (not travelling outside of the UK), leaflets, and direct hard copy mail Permitted

Types of media covered by the ban

The Department of Health has taken a minimal approach to the implementation of Article 20(5).

In some cases there is room for interpretation, in line with existing case law, which is narrower than the text on the face of the Directive, and those opportunities have been taken up. For example, ‘the press and other printed publications’ has been interpreted narrowly in line with case law as limited to publications such as ‘newspapers, magazines, periodicals’ not leaflets and posters. However, there is no exception for locally broadcast television, radio or press. This contrasts with the rules on sponsorship which are expressly limited to sponsorship of events and individuals taking place in several Member States or otherwise having cross border effects; accordingly sponsorship that is local and contained within the UK will be able to continue.

In addition, advertising of e-cigarettes in media such as billboards and posters in shops is outside of the scope of the Directive. This means that national rules can be made. There are no current plans in England, Wales or Northern Ireland. However, the Health (Tobacco, Nicotine, etc. and Care) (Scotland) Act 2016 contains powers to make regulations to ban other kinds of advertising of e-cigarettes.

The summary table of the requirements provides an overview of the ban.

Who the requirements apply to

The prohibitions only apply to people acting in the course of a business. A business must not publish or procure an advertisement about e-cigarettes or refill containers on TV or radio or on the internet or in a newspaper, magazine or periodical, or sell such a publication, or sponsor an event or individual with cross border effect.

These rules do not apply to private individuals, for example communicating via social media or in forums, not in the course of business. Existing guidance from the Advertising Standards Authority ( ASA ) covers what is and is not considered to be advertising on blogs and vlogs.

The prohibition doesn’t apply to genuine editorial or research papers. Similarly a public health campaign about relative risks of e-cigarettes verses tobacco products by Public Health England or local stop smoking services are not advertisements made in the course of a business and therefore not covered by these restrictions.

What can be advertised

The restrictions on advertising within the implementing regulations will only apply to products that are covered by the Directive. Advertising will still be permitted, subject to the rules set out in the Committee of Advertising Practice ( CAP ) and BCAP codes for:

non-nicotine liquids

non-nicotine disposable e-cigarettes (not able to be refilled)

non-disposable e-cigarettes designed to only take cartridges with non-nicotine containing fluid

medicinal products (subject to separate medicines advertising legislation)

Such advertising must not indirectly promote nicotine containing products. CAP and BCAP are expected to consult further on content rules to cover this issue.

The difference between information and promotion

The Directive prohibits the promotion, either directly or indirectly, of e-cigarettes but does not prevent the provision of information by a retailer or manufacturer about a product [at the request of a consumer]. However, this information must be provided in a non-promotional manner.

Information not sought directly and specifically by a consumer but broadcast by or on behalf of a business more generally, for example, a communication on radio, TV or in particular print media is likely to be an advertisement that promotes e-cigarettes.

However, the Department considers that a consumer who actively seeks out a business’s web page, be that a manufacturer/supplier or a retailer, can be said to have requested information about products that business makes or supplies. Responses to enquiries made by electronic means to retailers, suppliers and manufacturers could also be considered to have been sought by the consumer. It is likely that direct mailing a contact list with details of new products, not in response to a direct request for information about a specific product or range of products, would be considered promotion, although it would depend on the facts in each case. Advertising about price promotions is also prohibited.

As a guide the Department considers that information provided to consumers on request might include:

price

instructions for use

ingredients

flavour

nicotine content

description of the product components including, where applicable, the opening and refill mechanism

This may be presented in written form or in ‘how to’ videos, provided that it is presented in a non-promotional way.

Whether information is presented in a non-promotional way will be a matter of fact and context in each case, but as a guide the Department would consider the following promotion rather than information:

highlighting price promotion

using additional imagery that is not of the product

using celebrity endorsement

using overly descriptive language that describes products in a way that can’t be objectively substantiated

comparative information with other e-cigarette products or the general market, whether they can be substantiated or not

Enforcement

Broadcast and non-broadcast TV and radio

Ofcom will enforce the TV and radio rules via the existing enforcement regimes for broadcast and on-demand content. It issues broadcast licences and there is a pre-clearance procedure for advertisements. Ofcom has statutory powers under the Broadcasting Acts 1990 and 1996 to require a licence holder to remove an advertisement or to impose a financial penalty, and ultimately it can withdraw a broadcaster’s operating licence. Ofcom has enforcement powers under Part 4A of the Communications Act 2003 with respect to on-demand services.

Non-broadcast

For non-broadcast advertising (press, other printed publications and information society services), the Regulations will be enforced by weights and measures authorities or their equivalents but they are encouraged to “have regard to the desirability of encouraging control of advertising by such established means as it considers appropriate, having regard to all the circumstances of the particular case”. In practice, working arrangements will be put in place so that, in the majority of cases, compliance is ensured by the ASA with enforcement action by local authorities only necessary where breaches are recurrent and/or blatant.

Defences

A range of defences have been provided for. These include the standard limitations of liability for intermediary information society service providers, a publishers’ defence, and the due diligence defence that is applicable to other offences in the Tobacco and Related Product Regulations 2016.