RCPE has endorsed this response which ASH Scotland has submitted to the Department of Health
Article 20(5) of the Tobacco Products Directive 2014/40/EC requires EU member states to introduce restrictions on the advertising of electronic cigarettes. In the UK, the proposed implementation will consist of changes to the Communications Act 2003, free-standing new regulations and changes by Ofcom (the communications regulator in the UK) to the BCAP Code and Broadcast Code.
What Article 20(5) states
Member States shall ensure that:
(a) commercial communications in Information Society services, in the press and other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers are prohibited, except for publications that are intended exclusively for professionals in the trade of electronic cigarettes or refill containers and for publications which are printed and published in third countries, where those publications are not principally intended for the Union market;
(b) commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers, are prohibited;
(c) any form of public or private contribution to radio programmes with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers is prohibited;
(d) any form of public or private contribution to any event, activity or individual person with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers and involving or taking place in several Member States or otherwise having cross-border effects is prohibited;
(e) audiovisual commercial communications to which Directive 2010/13/EU of the European Parliament and of the Council applies, are prohibited for electronic cigarettes and refill containers.
What the Article means
From 20 May 2016, across the EU, e-cigarettes and re-fill containers cannot be advertised or promoted, directly or indirectly:
- on TV or on-demand TV
- on radio
- through information society services (this includes for example internet advertising and commercial e-mail)
- in certain printed publications – newspapers, magazines, periodicals and similar publications
The Article also prohibits:
- sponsorship of television and radio programmes which promotes electronic cigarettes
- product placement of electronic cigarettes
- sponsorship of activities or individuals that involve or take place in two or more EEA states
These restrictions are much more limited than those which apply to tobacco advertising, where all forms of advertising and sponsorship by tobacco companies are prohibited.
The proposed rules would not prevent public health campaigns or local stop smoking services messaging aimed at helping people make the switch from tobacco to e-cigarette use. These are not ‘commercial communications’.
The UK government’s plans
The Department of Health has taken a minimal approach to the implementation of Article 20(5). There is no intention to go beyond the requirements imposed by the Directive.
The copy out policy principle has been followed. In some cases there is room for interpretation which is narrower than the text on the face of the Directive, and those opportunities have been taken up. For example, ‘the press and other printed publications’ has been interpreted narrowly in line with case law as limited to publications such as ‘newspapers, magazines, periodicals’ not leaflets and posters.
Similarly, a line has to be drawn between information and advertising. The Directive draws the line by using the word ‘promote’, which we intend to copy. This would mean that where information is provided that gives detail about a product, or how to operate that product, but is not ‘promotional’ in nature, the restrictions would not apply.
Advertising of e-cigarettes in media such as billboards and posters in shops is outside of the scope of the Directive. This means that national rules can be made. There are no current plans in England, Wales or Northern Ireland. However, the Health (Tobacco, Nicotine, etc. and Care) (Scotland) Bill was introduced to the Scottish Parliament in June 2015. This Bill contains powers to make regulations to ban other kinds of advertising of e-cigarettes. The Health and Sport Committee has completed its consideration of written and oral evidence submissions on the Bill and its Stage 1 report is available on the Scottish Parliament’s website. The next step will be a stage 1 debate and vote on the Bill’s principles; there is no confirmed date for this as yet.
