An influencer posted a video on TikTok reviewing Elfbar e-cigarettes sent to her by Cloud City. The e-cigarettes featured in the ad were positively reviewed, with recommendations for various flavors being discussed. The ASA challenged whether the post breached the CAP Code by promoting unlicensed nicotine-containing e-cigarettes and their components on TikTok.
The CAP Code states that except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that are not licensed as medicines are not permitted in online media and some other forms of electronic media. The ASA concluded that the ad breached the Code as it promoted the e-cigarette brand from a public TikTok account. The ASA explained that TikTok posts can be distributed beyond the followers of a particular account and therefore was not equivalent to actively seeking out information about e-cigarettes. Thus, public social media accounts, like TikTok, are not analogous to a website, and therefore, neither factual nor promotional content for e-cigarettes is permitted.
The ASA found that the post was a marketing communication that fell within the remit of the CAP Code as there were text messages establishing the relationship; and the post referred to e-cigarette distributor Cloud City Vapez, “Paid partnership”, and “#ad.” The unlicensed e-cigarettes that were prominently featured in the ad were promotional content and therefore restricted.
The ASA ordered that the ad not appear again in the form complained about.
ASA Ruling on Cloud City Vapez UK Ltd, Social media (influencer or affiliate ad), Complaint Ref. A23-1205196 (2023).
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
Electronic and/or battery-operated devices designed to deliver an inhaled dose of nicotine or other substances. Examples include electronic cigarettes (e-cigarettes), electronic cigars, electronic cigarillos, electronic hookah, vaporizers, and vape pens. ENDS does not include any device or medication approved by the government as nicotine replacement therapy.
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"We then assessed whether the post was a marketing communication that fell within the remit of the CAP Code. The post on Harleigh Perez’s TikTok account, referred to e-cigarette distributor Cloud City Vapez. Text below the video stated, “@Cloud City UK #ad #vape #vapehaul #elfbar” and “Paid partnership”. In addition, we considered the text messages provided to us by Ms Perez indicated that the products had been sent to her for free and therefore constituted a payment to her. We considered that was sufficient to establish a commercial relationship between Ms Perez and Cloud City Vapez. We considered the relationship between the parties, along with the references to “#ad” and “Paid partnership”, established that the post was a marketing communication falling within the remit of the CAP Code."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
An influencer posted a video on TikTok reviewing Elfbar e-cigarettes sent to her by Cloud City. The e-cigarettes featured in the ad were positively reviewed, with recommendations for various flavors being discussed. The ASA challenged whether the post breached the CAP Code by promoting unlicensed nicotine-containing e-cigarettes and their components on TikTok.
The CAP Code states that except for media targeted exclusively to the trade, marketing communications with the direct or indirect effect of promoting nicotine-containing e-cigarettes and their components that are not licensed as medicines are not permitted in online media and some other forms of electronic media. The ASA concluded that the ad breached the Code as it promoted the e-cigarette brand from a public TikTok account. The ASA explained that TikTok posts can be distributed beyond the followers of a particular account and therefore was not equivalent to actively seeking out information about e-cigarettes. Thus, public social media accounts, like TikTok, are not analogous to a website, and therefore, neither factual nor promotional content for e-cigarettes is permitted.
The ASA found that the post was a marketing communication that fell within the remit of the CAP Code as there were text messages establishing the relationship; and the post referred to e-cigarette distributor Cloud City Vapez, “Paid partnership”, and “#ad.” The unlicensed e-cigarettes that were prominently featured in the ad were promotional content and therefore restricted.
The ASA ordered that the ad not appear again in the form complained about.