Elf Bar and HQD are Chinese brands that produces disposable e-cigarettes in various flavours and models. The two brands have been advertising there products on TikTok, a popular social media platform among young people, through influencers who post videos featuring the vapes. However, the Advertising Standards Authority (ASA), the UK watchdog for advertising, has ruled that these ads breach the UK advertising code by making misleading and irresponsible claims about the products.
The Complaint and Ruling of Elf Bar
The ASA received complaint from Imperial Tobacco, a rival tobacco company who owned the Vape brand Blu. Imperial Tobacco challenged the post releated to Elf Bar breached the Code by promoting unlicensed, nicotine-containing e-cigarettes and their components on TikTok.
The TikTok post from the account @Panaxhe_ promoting Elf Bar, an electronic cigarette brand, posted on 18 May 2022, featured scenes of a young man going through his day, which included referring to and smoking Elf Bar vapes, showing the product, and stating some Elf Bar brand flavours such as “blueberry” and “kiwi passionfruit”. He had written in a notebook “Why I Love My ELF BAR Rechargeable Disposable Pods”. On-screen text stated “RICH FLAVOUR” and “Rechargeable pods save a lot of money” with a heart eyes face emoji.
Text underneath the video stated “Best vapes out there, don’t let the fiends get to it @elfbar_official_global #ELFA #ElfaEcoChoice # SavingMoney #ad Paid partnership”.
Green Fun Alliance, trading as Elf Bar, said they had contacted the content creator and TikTok and asked them to remove the post. Elf Bar said that as a result of the complaint, they had stopped TikTok content and communications marketing in the UK.
The ASA also ruled that the Elf Bar ad must not appear again, adding: “We told Green Fun Alliance that marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines should not be made from a public TikTok account.”
The Complaint and Ruling of HQD Vape
The HQD releated complaint was about a video posted by George Baggs, a former Gogglebox star who was 19 years old at the time of posting. The video showed him holding up an HQD Wave disposable electronic cigarette and matching it with his outfit, while on-screen text stated “Matching my outfit with my new HQD v@pe”. As the video went on, George got dressed while smoking an electronic cigarette. Text underneath the video stated “Always get asked to do these sorta vids so here ya go 🙂 #HQDVIP #uk #trending”.
ASA investigated whether the posts broke advertising rules by promoting unlicensed, nicotine-containing e-cigarettes on TikTok, and by featuring Mr Baggs, who was under 25 years old.
HQD Tech said they did not believe that Mr Baggs was encouraging viewers to try the product. And HQD had removed all content posted by Mr Baggs until the conclusion of the ASA investigation and was taking additional steps to ensure younger audiences were not being targeted. Off Limits Entertainment, on behalf of Mr Baggs, said they had contacted HQD Tech and would ensure that he would not promote any vape campaigns on his social media channels in future. HQD Tech said that George Baggs was born in 2003 and was 19 years old when the ad was posted.
TikTok said the video was user generated content and it did not appear in paid-for ad space, neither was it disclosed as branded content. They said that on being notified of the complaint, they had made the content unavailable to users in the UK as it was a breach of their Terms of Service, which prohibited the advertising of cigarettes and tobacco products (which included e-cigarettes). TikTok also said the mechanics of the platform was such that the content might have appeared on an algorithmically driven “For You” feed so that users who did not sign up to follow George Baggs’ account may have seen it (but the content was now unavailable on the “For You” feeds of UK users). They said that users posting on TikTok had the option to restrict content to be seen only by themselves, their “friends” (i.e., people who followed the user), or to “everyone”, which would be seen by anyone on the platform.
On the HQD Tech ad, the ASA ruled: “Marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines should not be made from a public TikTok account”. And “HDQ Tech that if advertising in media permitted under rule 22.12, they must not show people who are, or seem to be, under 25 years of age, using e-cigarettes or playing a significant role.”
The Rules of E-cigarette’s Marketing in UK
There are strict rules on promoting vaping products in the UK that are designed to prevent irresponsible marketing and ads aimed at young people.
- Marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components which were not licensed as medicines should not be made from a public TikTok account.
- CAP Code rule 22 .10 stated that If advertising in media permitted under the rules, anyone shown using e-cigarettes or playing a significant role they must not show people who are, or seem to be, under 25 years of age.
By following the rules, the promotional content was prohibited on retailers’ own websites, rule 22 .12 specified a particular exception that the provision of factual information was not prohibited. The basis of the exception to the rule was because consumers had to specifically seek out that factual information by visiting the website.
The Guidance stated that, in principle, there was likely to be scope for the position relating to factual claims being acceptable on marketers’ websites, to apply to some social media activity. A social media page or account might be considered to be analogous to a website and able to make factual claims if it could only be found by those actively seeking it.
It was possible for public posts from a TikTok account to be distributed beyond those users who had signed up to follow the account due to TikTok’s algorithms and account settings. We considered that was consistent with content being pushed to consumers without having opted in to receive the message it contained and therefore it was not equivalent to actively seeking out information about e-cigarettes. Marketing material from a public TikTok account was not analogous to a retailer’s own website and that material posted from such an account was therefore subject to the prohibition on advertising of unlicensed, nicotine-containing e-cigarettes, meaning that neither promotional nor factual content was permitted.