The question is simple enough: Does the EU allow e-cigarettes to be marketed on social media?
“Feeling Vype af,” wrote German actress Bonnie Strange in an Instagram post that features her posing at a festival with a wisp of smoke trailing from her lips.
Strange is just one of many influencers in Europe promoting vaping products like Vype, produced by British American Tobacco (BAT). This proliferation of marketing across social media makes it easy to assume that the paid promotion of vaping products is perfectly lawful.
But anti-smoking groups are leading the charge against these campaigns, arguing they contravene EU rules. They cite a 2014 EU directive that prohibits most advertising of electronic cigarettes — and charge that vaping giants are skirting the rules in an area where enforcement is difficult.
“Its not a matter of whether its allowed or not,” said Anca Toma Friedlaender, director of Smoke Free Partnership. “Its a matter of how not to get caught.”
“Its not a matter of whether its allowed or not. Its a matter of how not to get caught.” — director of Smoke Free Partnership Anca Toma Friedlaender
One major controversy these days concerns BAT, which is expecting an imminent decision from the U.K.s Advertising Standards Authority on whether its use of social media to promote Vype electronic cigarettes breaches U.K. regulations. That ruling could soon provide at least one concrete answer to the question.
The U.K. case, brought by the Campaign for Tobacco Free Kids, is being closely watched because regulations in Britain are merely an implementation — at least until Britain quits the EU — of the broader EU directive that all member states are obliged to enforce.
Separately, the European Commission will also be revisiting its own directive, which sets out rules for tobacco products and electronic cigarettes for member states. By May 2021, its due to publish a report assessing the directive and, in particular, considering market developments in e-cigarettes.
The review asks how the directive has been implemented and what impact it has had. Ultimately, itll determine whether the 2014 directive needs amendments. This process is something that occurs regularly across EU rulemaking, to ensure that major scientific, market and international developments are incorporated.
Central to the rules on e-cigarettes is the EUs cross-border ban on advertising, which was laid down in another directive, in 2003. This included almost all advertising in printed media, information society services and on the radio. The 2014 directive then extended the rules to electronic cigarettes.
An advertisement for Juul vapes in San Francisco | Robyn Beck/AFP via Getty Images
Underscoring much of the uncertainty is the EUs requirement that member states prohibit commercial communications of e-cigarettes in “information society services.” These services are defined under three criteria: They must be provided “at a distance,” “by electronic means” and at the “individual request of a recipient of services.”
Anti-tobacco campaigners believe these terms are simple, and that they apply to social media as well.
“Its the internet, and the internet is information society services, and advertising on the internet is banned,” said Friedlaender.
The EUs DG Sante offered POLITICO a less straightforward take: Information society services could include social media sites and would therefore banned, but only if the sites fulfill the EUs three criteria.
Guidance on how to interpret the U.K.s advertising code is similarly vague. It says that “paid social media placements, advertisement features and contextually targeted branded content” for electronic cigarettes are, or are likely to be, prohibited.
Anti-tobacco campaigners believe the EUs e-cigarette advertising terms are simple — and that they apply to social media as well.
But it also notes that vaping companies, which usually are owned by Big Tobacco, may post factual information about a product on their websites. And some social media activity could also fall under this guideline.
In the Campaign for Tobacco Free Kids argument before the ASA, it contended that BATs use of hashtags unrelated to vaping mean that, by the very nature of hashtags, consumers can find vaping products without actively seeking them.
In the past, BAT has used hashtags like #throwbackthursday and #behindthescenes alongside its content. Anyone searching for these hashtags, then, would also see Vype content.
This “use of seemingly innocuous hashtags … is a strategy to exponentially expand the reach of e-cigarette marketing online,” said the campaign groups Associate Director of International Communications Caroline Renzulli.
The debate gets even murkier when it comes to influencers who promote products through their own posts.
Friedlaender said this appears to be the “loophole” that vaping companies exploit.
A model vapes before a show during New York Fashion Week | Eduardo Munoz Alvarez/AFP via Getty Images
On platforms such as Instagram, for example, individuals may post images that include e-cigarettes. And while outright advertisements arent allowed, a website, brand or store can promote the sale of their products, provided these campaigns are restricted to adults. On Instagram, brands can choose to “age-gate,” which automatically blocks underage users from viewing their content.
While Instagram wouldnt say whether itll enforce stricter policies, Tara Hopkins, its head of public policy for EMEA, said that the company would “continue to work in partnership with the wider industry and the appropriate regulatory bodies as we develop our policies and enforcement tools.”
Deborah Arnott, Action on Smoking and Healths chief executive, said influencers are “an obvious gray area” where more work should be done.
“The industry will push where the regulations arent black and white, where theres an obvious gray area,” Read More – Source