In recent years there have been societal concerns about the advertisement of specific products such as age-restricted products like alcohol or electronic cigarettes.

It is important to understand advertising law and the legalities of advertising such a product for commercial purposes, and to recognise what may constitute a breach of the ASA’s guidelines.

In May 2016, the Tobacco Products Directive came into UK law, affecting how e-cigarettes may be advertised. As a result, there are significant prohibitions on ads for non-medicinal e-cigarettes which contain nicotine.

Guidance for the advertisement of e-cigarettes for marketers can be found in The Department of Health’s literature. It states that ads for non-medicinal, nicotine-containing e-cigarettes are prohibited for on-demand TV, newspapers, magazines and internet display, email and text messaging. A website may present facts about products but may not be used to promote or advertise e-cigarettes.

However, ads are permitted on outdoor posters and on sides of buses, in cinemas, fax, leaflets and direct hard copy mail. For those permitted ads, the following issues must be considered.

Firstly, all advertisements must be socially responsible. Therefore they must not encourage non-smokers to use the products.

They must not target or appeal to children, nor use actors appearing to be 25 years or younger in their ads. They cannot be confused with tobacco products, and no health claims or health comparisons to tobacco can be made. Nicocigs Ltd was found to have breached the CAP Code when it made the claim that using Nicolite e-cigarettes was simply ‘inhaling a completely harmless, odourless vapour’.

Further, advertisers cannot suggest their product can act as a smoking cessation device. The slogan “help your loved ones change their life this Christmas” used by E-Cigilicious was found to violate the CAP code.

Lastly, there must be no confusion as to the ingredients of products or where those products may be used.

Advertising can be a minefield and it is clear that advertisers need to take responsibility for the way they advertise their products and must adhere to the regulations put in the place by the Advertising Standards Authority (ASA) and CAP.

If you would like to discuss advertising law and regulation in more detail please contact Jessica O’Riordan, a solicitor in the IP/IT team, on 01392 210700 or by e-mail ip.it@stephens-scown.co.uk