A paid-for TikTok ad for Daniels Vapes featured a video depicting someone asleep with a thought bubble above their head. The scene inside the bubble panned around a shop and showed shelves of brightly colored e-cigarette products. The ASA challenged whether (1) the ad breached the CAP Code by directly or indirectly promoting unlicensed nicotine-containing e-liquids and their components in online media; and (2) TikTok had breached the rules for Video Sharing Platforms (VSPs) by including an ad for e-cigarettes. Daniels Vapes claimed they were following a trend on TikTok and had not realized that it represented a breach of the Code. They believed they or another account user had accidentally marked the video as a paid ad. TikTok claimed that an element of their moderation systems did not identify the ad as an e-cigarette promotion and prohibit it accordingly. TikTok said that e-cigarettes might appear to resemble pens, highlighters, lipstick tubes and even toys and so at times raised challenges for moderation models.
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 were not licensed as medicines were not permitted in online media and some other forms of electronic media. The ASA concluded that the ad breached the Code as it had the direct or indirect effect of promoting e-cigarettes that were not licensed as medicines in non-permitted media.
The VSP Appendix states that advertisements for e-cigarettes and refills are prohibited. That rule applies to advertising that was “marketed, sold or arranged” by VSPs, such as TikTok. As such, TikTok breached its responsibility to ensure that ads appearing in paid-for space on its platform complied with the Appendix rules.
The ASA ordered that the ad not appear again in the form complained about.
ASA Ruling on Daniels Vapes t/a danielsvapes1, Social media (paid ad), Complaint Ref. A23-1207692 (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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"The ASA considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes featured prominently in the ad, which was for an e-cigarette store. We considered that the ad contained promotional content for the product and consequently the restriction that applied to online media under rule 22.12 was applicable. We acknowledged that Daniels Vapes had placed the ad in error. However, because the ad had the direct or indirect effect of promoting e-cigarettes that were not licensed as medicines in non-permitted media, we concluded that it breached the CAP Code...The ASA considered whether the ad directly or indirectly promoted a nicotine-containing e-cigarette. Unlicensed e-cigarettes featured prominently in the ad, which was for an e-cigarette store. We considered that the ad contained promotional content for the product and consequently the restriction that applied to online media under rule 22.12 was applicable. We acknowledged that Daniels Vapes had placed the ad in error. However, because the ad had the direct or indirect effect of promoting e-cigarettes that were not licensed as medicines in non-permitted media, we concluded that it breached 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.
A paid-for TikTok ad for Daniels Vapes featured a video depicting someone asleep with a thought bubble above their head. The scene inside the bubble panned around a shop and showed shelves of brightly colored e-cigarette products. The ASA challenged whether (1) the ad breached the CAP Code by directly or indirectly promoting unlicensed nicotine-containing e-liquids and their components in online media; and (2) TikTok had breached the rules for Video Sharing Platforms (VSPs) by including an ad for e-cigarettes. Daniels Vapes claimed they were following a trend on TikTok and had not realized that it represented a breach of the Code. They believed they or another account user had accidentally marked the video as a paid ad. TikTok claimed that an element of their moderation systems did not identify the ad as an e-cigarette promotion and prohibit it accordingly. TikTok said that e-cigarettes might appear to resemble pens, highlighters, lipstick tubes and even toys and so at times raised challenges for moderation models.
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 were not licensed as medicines were not permitted in online media and some other forms of electronic media. The ASA concluded that the ad breached the Code as it had the direct or indirect effect of promoting e-cigarettes that were not licensed as medicines in non-permitted media.
The VSP Appendix states that advertisements for e-cigarettes and refills are prohibited. That rule applies to advertising that was “marketed, sold or arranged” by VSPs, such as TikTok. As such, TikTok breached its responsibility to ensure that ads appearing in paid-for space on its platform complied with the Appendix rules.
The ASA ordered that the ad not appear again in the form complained about.