The Advertising Standards Agency (ASA) said: “This proposal follows the results of a call for evidence last year in which a majority of respondents argued that improvements in products and the positive view taken by many public health stakeholders about e-cigarettes’ relative safety compared with smoked tobacco warranted the removal of the prohibition.”
The news follows swiftly on the heels of the ASA calling the current situation a “legal minefield”, earlier this month, and hinting that future action would be taken to address the situation. Chris Snowdon, director of lifestyle economics at the Institute for Economic Affairs, pointed out that the current ban would mean the government would break the law if it ran a stop smoking campaign and encouraged people to switch to vaping for health reasons.
The consultation will close at 5pm on Monday 16 October.
CAP writes: “A small number of stakeholders are not supportive of such a move. It is also important for those who support the change in principle to understand what claims will and will not be possible and how they will need to be substantiated.”
Currently the CAP Code contains the following rule:
They state: “These rules contain two distinct prohibitions: on ‘medicinal’ claims and on ‘health’ claims. The prohibition on medicinal claims is a legal requirement and mirrors relevant rules in the Medicines section of both Codes. Medicinal claims include smoking cessation and reduction claims of the like seen in ads for licensed nicotine replacement therapies (NRT) and a product would need authorisation from the MHRA before such claims could be made for it. As this position emanates from the interpretation of legislation by a statutory regulator CAP and BCAP cannot change it and it will remain in place.
“The prohibition on health claims prohibits any claim that a relationship exists between an e- cigarette or one of its constituents and health. This prevents a range of claims, including that e-cigarettes are healthier or safer than smoking tobacco. CAP and BCAP put this prohibition in place in 2014 because at that time there was no specific regulatory framework for e-cigarettes as a product category and there were significant concerns about the variability in quality and safety about products on the market.”
The following organisations and businesses have expressed a desire to see the rule banning health claims changed:
The reasons people wish to see the regulation altered include:
- Public Health England reporting that vaping is 95% safer than smoking.
- Misinformation is corrupting the perception of vaping in the eyes of the public and current smokers.
- There are no EU or UK laws forcing anybody to ban health claim advertising unless it is misleading.
- Factual information about relative risks informs buying decisions.
- Product standards have been greatly improved since 2014.
- Statements about relative harm should be allowed in order to educate smokers and encourage them to stop.
Opposition to any change in status quo comes from:
- Blackpool council
- The British Medical Association
- Johnson & Johnson
- The Proprietary Association of Great Britain
- The Royal College of Radiologists
- The Welsh Government
The arguments against relaxing advertising rules include:
- Vaping is not safe and risk-free.
- The Cochrane Review said evidence for potential health benefits of switching is of low quality.
- Relaxing a rule is inconsistent with the spirit of the Tobacco Products Directive.
- Vape devices are not listed in NICE’s Smoking Harm Reduction guideline.
- If someone wants to make health claims then apply for a medicines licence.
- A change would undermine confidence in traditional nicotine replacement products.
- And something about the World Health Organisation saying vaping should only be encouraged once it is proved to be “safe and effective”.
The pair of committees note: “CAP and BCAP consider that it is clear from the arguments discussed above that the evidential position has changed. A majority of respondents representing NGOs, local authorities and industry alike make the case for change based on clear evidence that major public health stakeholders are now on record regarding e-cigarettes as being markedly safer than tobacco. Meanwhile the industry has been moving towards, and indeed is now required by legislation to evidence, far higher standards than was the case in 2014.”
Consequently, they are both of the opinion that the evidence weighs strongly in favour of relaxing the rules and making it permissible to advertise health benefits from vaping when compared to smoking.
They point out that this doesn’t mean companies can make any claims they like: “When making health claims for e-cigarettes they would have to ensure that claims were not misleading and be in possession of robust evidence that supported any claims made for their products, in line with the Advertising Guidance on Substantiation. They would need to be able to produce this evidence to the ASA on request.”
In effect, it would mean all advertisers could refer to vaping being 95% safer than smoking – a key message that has been clouded by the Californian-based lies. It is likely that any new ruling would see an advertisement reported by the Pharma industry, keen to place limits in some fashion – including something like not using a health professional to endorse electronic cigarettes.
CAP and BCAP pose questions, for the consultation:
- Do you agree with CAP and BCAP’s proposal to remove the prohibition on health claims from unlicensed nicotine-containing e-cigarettes? If not please explain why. Please also provide any relevant evidence not already taken into account by CAP and BCAP in making this proposal.
- Do you agree with CAP and BCAP’s proposed changes to the wording of the rules, as set out above? In not please explain why.
In relation to Question 2, the changing to the wording of the rules is identified below:
CAP and BCAP propose to add extra text into the rules:
- Do you agree with CAP’s proposal to add qualifying text to the introductory text of the e- cigarette section of its Code as set out above? If not please explain why.
- Do you agree with the wording proposed? If not, please explain why and provide your suggestions as to how it should be amended.
- Do you have any other information or evidence that you think might be relevant to CAP’s consideration of its regulation of public health advertisements which refer to e-cigarettes?
Vapers wishing to contribute to the consultation process are requested to answer the five questions in a Microsoft Word document and email it as an attachment to [email protected]
Alternatively, you can post your contribution to the consultation process to:
Regulatory Policy Team, Committee of Advertising Practice, Mid City Place,
71 High Holborn
London WC1V 6QT
The consultation document can be downloaded here.
The consultation will close at 5pm on Monday 16 October.