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.
“It’s not a matter of whether it’s allowed or not,” said Anca Toma Friedlaender, director of Smoke Free Partnership. “It’s a matter of how not to get caught.”
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, it’s 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, it’ll 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 EU’s 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.
Underscoring much of the uncertainty is the EU’s 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.
“It’s the internet, and the internet is information society services, and advertising on the internet is banned,” said Friedlaender.
The EU’s 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 EU’s 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.
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 BAT’s 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 group’s Associate Director of International Communications Caroline Renzulli.
The debate gets even murkier when it comes to influencers who promote products through their own posts.
Click Here: cheap INTERNATIONAL jersey
Friedlaender said this appears to be the “loophole” that vaping companies exploit.
On platforms such as Instagram, for example, individuals may post images that include e-cigarettes. And while outright advertisements aren’t 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 wouldn’t say whether it’ll 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 Health’s chief executive, said influencers are “an obvious gray area” where more work should be done.
“The industry will push where the regulations aren’t black and white, where there’s an obvious gray area,” she said, citing the example of the debate over plain packaging, which is now required in some European countries for conventional cigarettes. “They will push further than the rules allow until they’re stopped from getting away with it.”
Friedlaender, for her part, calls for stronger penalties.
“Clearly, shaming doesn’t work with tobacco companies,” she said. But social media companies also need to be on board with the regulations, she added.
The Campaign for Tobacco Free Kids agrees.
“In the absence of meaningful ad policies from companies like Instagram and Facebook, social media has become an advertising haven for Big Tobacco,” said Renzulli. “Facebook and Instagram know this is a problem and are letting companies like British American Tobacco abuse their platforms to advertise to young people.”
BAT refutes the charge that they are contravening EU rules, explaining that it ensures its content is “factual in nature” and targeted only at adults.
Caught in the act
Campaigners, however, claim that these marketing campaigns are reaching teenagers — and companies such as BAT are violating their own marketing principles, which state they won’t use influencers who are under 25. Amid this criticism, Philip Morris suspended its social media campaign earlier this year after Reuters journalists reported that the company used young influencers to market their products.
Meanwhile, POLITICO approached BAT with examples of influencers in Latin America promoting Vype who appear or claim their age was under 25. But the tobacco giant said it immediately ceased working with the agencies that recruited the influencers once it found out those hired were under age.
“Where our processes are not strictly followed, we deal with it quickly,” said BAT.
Unlike Philip Morris, however, the revelation didn’t halt any broader social media campaign.
In fact, earlier in November, BAT’s Vype account for the U.K. posted an image of a women puffing on a Vype electronic cigarette atop a snow-capped mountain.
“If you’re out and about, the Vype #ePod is small enough to go anywhere with you,” said the text.
CORRECTION: This article has been corrected to note that plain packaging for cigarettes is required in some European countries.