As nervy regulators grapple with interim rules, what does the future hold for e-cigarette advertising?

Other rules include the requirement to state clearly that the product is an e-cigarette and if the product contains nicotine. However, TV ads can now show e-cigarettes in shot – a controversial liberalisation. After almost 50 years since cigarette commercials where banned, the sight of a cigarette-like product and smoke-like vapour on our screens is emotive.

Previously, the marketing of e-cigarettes had fallen between the gaps and they were an 'unregulated' product. By 'unregulated', I mean that that there was neither specific legislation regarding the sale and marketing of e-cigarettes nor any specific sections of the CAP adverting codes dealing with the marketing of e-cigarettes. The Advertising Standards Authority (ASA) had to rely on the general sections of the advertising codes which are applicable to all products and services when dealing with complaints.

I consider that CAP originally intended to simply rely on the general sections of the advertising codes until the EU Tobacco Products Directive, which deals with the advertising of e-cigarettes, is transposed into UK law in 2016.

However, the growth of the e-cigarette industry and increased marketing spend, largely a strategic attempt to maximise the window of marketing opportunity before the 2016 crackdown, resulted in a proliferation of ads (and complaints). Numerous complaints about e-cigarette ads were upheld by the ASA as being in breach of the rules against making smoking cessation claims.

In addition, the style of many e-cigarette ads arguably marketed the products in a glamourised manner which could appeal to a new market (not only to existing smokers) and potentially to teenagers/children. Public interest in these latter points, concerns about the increased involvement of tobacco companies and unanswered questions over the safety of e-cigarettes no doubt resulted in the adoption of the new rules.

Without MHRA (Medicines and Healthcare products Regulatory Agency) marketing authorisations, advertisers have been, and continue to be, unable to lawfully advertise e-cigarettes as 'quit smoking' devices – such claims are reserved for medicines. However, the interim rules also crack down on “health” claims.

CAP’s guidance states that claims that smoking e-cigarettes containing vaporised nicotine is healthier than smoking tobacco, risk-free, or harmless are likely to be problematic. In the ASA adjudications I’ve considered, the ASA repeatedly concludes that it has not seen sufficient robust evidence to substantiate claims that e-cigarettes are less harmful than tobacco generally or that the particular brand of e-cigarette complained about is less harmful.

As mentioned above, things will change again in 2016. Some types of e-cigarette will only be able to be sold with an MHRA marketing authorisation and others, where an MHRA marketing authorisation has not been voluntarily obtained, will be subject to a new regulatory regime which will be confirmed in legislation once the Tobacco Products Directive is transposed.

Obtaining an MHRA marketing authorisation is a long and costly process: application fees need to be accompanied by scientific clinical trials to investigate whether the benefits outweigh the risks to the public and prove that the product is safe and effective. This requirement for funding and expertise accounts for the increased interest in the market by pharmaceutical companies and for the big tobacco buyouts of the small businesses that originally operated in the market.

Are these interim rules too strict? Should E-cigarettes be approached in a similar manner to alcohol?

I consider that these rules are cautious but the current lack of clarity on the safety of e-cigarettes is clearly making the regulators nervous. I can’t see any relaxation of the rules on the horizon in the near future.

Helen Bowyer is senior associate in the advertising and marketing team at law firm Lewis Silkin