• tobacco industry
• non-cigarette tobacco products
• electronic nicotine delivery devices
• harm reduction
• surveillance and monitoring

In response to stronger tobacco control regulation spreading around the world, the tobacco industry releases and promotes new, diverse products in order to maintain market share. The release of heated tobacco products (HTPs) in May 2017 and closed system types of electronic cigarette (e-cig) vapour products (eg, JUUL) in May 2019 have transformed South Korea’s tobacco market, given that these products have already captured around 11.4% of the market share as of September 2019.1

In South Korea, the definition of a tobacco product refers to what is manufactured in a state suitable for smoking, sucking, inhaling (aerosol), chewing or smelling, by using tobacco leaves as all or any part of the raw materials, according to Article 2 of the Tobacco Business Act.2 Based on the aforementioned act, while HTP sticks and e-cig liquid containing nicotine from tobacco leaves are both regulated as tobacco products, HTP sticks and e-cig liquid that may have nicotine from other parts of tobacco, such as tobacco stems and roots, are not regulated as tobacco products, nor are the devices to use with them. This might be a different view and definition from other countries, such as the UK, where smokers are encouraged to use e-cigs as a smoking cessation aid.

South Korea’s legal definition of tobacco products is abused by the tobacco industry and e-cig manufacturers. Since any tobacco product containing ingredients made of substances other than tobacco leaves is not classified as a tobacco product, all tobacco control policy measures, including tobacco taxes, implementation of graphic health warnings, bans on use in public places and bans on tobacco advertising and promotion and sponsorship, cannot be applied to these products. The marketing of e-cigs containing liquid nicotine from ‘tobacco stems or roots’ and/or ‘synthetic nicotine’ poses emerging regulatory challenges. All devices and accessories designed for consuming HTP sticks or e-cig liquid are also classified as general consumer products and are recognised as a new and lawless marketing route by the tobacco industry and e-cig manufacturers.

Recent customs data show how e-cig manufacturers enjoy the current legal problem. In 2018, 21 890 kg of e-cig liquid were imported to Korea, and 97.2% of it (21 294 kg) was composed of e-cig liquid made with nicotine derived from tobacco stems or roots.3 E-cig manufacturers register and label these products as ‘stem nicotine’, ‘chemical synthetic nicotine’ or ‘tobacco free nicotine’ products, which allows the manufacturers to be free from tobacco control measures. For instance, an investigation conducted by the National Tobacco Control Centre found that the number of internet ads and promotional content for e-cig liquid with tobacco stems or roots (figure 1) in 2019 amounted to 533, which is 250% greater than in 2017 (212).

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Figure 1

An advertisement on Instagram of an e-cig liquid product containing nicotine from tobacco stem. It is illegal to advertise and promote tobacco products online in Korea. However, e-cig liquid products containing nicotine from tobacco stems/roots are not classified as tobacco products by South Korean law, and online advertising of these products (with #stemnicotine) prevails. The authors obtained this image on the internet and it was open for public. Image source: https://www.instagram.com/p/ByKvKILlVKJ/.

Electronic devices designed for consuming tobacco/nicotine are not classified as tobacco products and there is no legal ground to regulate promotional activities related to the devices. The tobacco industry and e-cig manufacturers have recently opened flagship shops and pop-up stores under the brand name of their devices, such as ‘IQOS’ and ‘Glo’ in major commercial districts in Korea. Discounts and free trial events for the devices, which are illegal for other tobacco products, are now commonplace. To target youth, tobacco companies made music videos with celebrities and influencers promoting their newly released devices via online platforms. A device design contest organised by a tobacco company (figure 2) is another example showing how the industry abuses regulatory loopholes created by the narrow definition of tobacco products in South Korean law.

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Figure 2

An online design contest banner for an HTP’s device and accessory, organised by BAT Korea. BAT Korea held a design contest for its HTPs device “glo” in 2018. Abusing the regulatory loophole that devices and accessories made for consuming tobacco products are not categorised as tobacco by law, thus facing no limitation on online advertising and promotional activities, the contest application eligibility aimed at college students clearly show that it indirectly promoted its product by targeting young adults. The authors obtained this image on the internet and it was open for public. Image source: http://glocontest.makesite.kr/.

Challenges observed in South Korea clearly show that the tobacco industry evolves and continues their business practices by exploiting regulatory loopholes. Without their being classified as tobacco products, there is no way to properly track and monitor the supply chains of these products, and unregulated marketing tactics will likely lead to increased exposure to youth. Conceding that novel products will always keep flourishing, ways to define tobacco products will play a key role in future tobacco control policy. To overcome this problem, at the national level, the scope of the legal tobacco definition in South Korean law should be extended by an amendment of the Tobacco Business Act, so that all tobacco products that can cause nicotine addiction and the electronic devices for tobacco use should be properly regulated. Based on South Korea’s experience, it is necessary to examine possible challenges these products are posing for the comprehensive application of the WHO Framework Convention on Tobacco Control (FCTC), and in particular, those articles and guidelines referring to definitions/terminology, and to consider new product categories. Regarding this issue, at the eighth session in 2018 the conference of the parties of the WHO FCTC requested the convention secretariat to examine the challenges to the comprehensive application of the WHO FCTC, particularly the articles and guidelines referring to definitions and terminology, while considering the need to adapt these guidelines. The secretariat was also requested to advise, as appropriate, on the adequate classification of novel and emerging tobacco products such as HTPs to support regulatory efforts and the need to define new product categories.4 South Korea’s experience with HTPs and e-cigs in the context of national law would be a good case study to inform the ongoing work of the convention secretariat, the WHO and the parties.