UK: Advertising Standards Agency rules that e-cigarette ads are misleading

The UK Advertising Standards Authority (ASA) has upheld ASH Scotland’s complaint against e-cigarette retailer VPZ/CCHG Ltd (which has financial ties with tobacco company Philip Morris International).

The ASA's UK Code of Non-broadcast Advertising and Direct and Promotional Marketing (CAP Code) – the rule book for non-broadcast advertisements, sales promotions and direct marketing communications – states that marketing communications must not contain medicinal claims unless a product is authorised for those purposes by the Medicines and Healthcare products Regulatory Agency (MHRA).

Claims that e-cigarettes are capable of helping users to quit smoking cigarettes or reduce the amount that people smoke are considered medicinal claims, and such claims are prohibited in the absence of a relevant MHRA licence – which no e-cigarette product sold in the UK has yet received.

The advert, which breached CAP Code (Edition 12) rule 22.5 (Electronic cigarettes), was published on the company’s website under the headline ‘Make the switch today with the VPZ Vape Clinic’ and contained several explicit references to smoking cessation. The ASA’s ruling states that ‘the ad must not appear again in its current form.’

The ASA judgement, published on the 15th February 2023 stated: “We told CCHG Ltd not to make smoking cessation claims about their e-cigarette products in the absence of a relevant MHRA [Medicines and Healthcare products Regulatory Agency] licence.”

Sheila Duffy, Chief Executive of health charity, ASH Scotland, said: “We welcome ASA’s ruling which draws a clear line for profit-making vaping businesses like VPZ inappropriately using medical language about e-cigarettes in advertising sales pitches.

“Staff working for vaping companies are not qualified to provide medical advice, and these companies are not health stakeholders. Not one single e-cigarette product has been licensed by the MHRA to be used as a smoking cessation aid.”

In addition to the medical language used to promote e-cigarettes, Duffy also pointed out that VPZ were also offering heated tobacco products (HTPs) on a try with money back offer as part of their ‘clinics’. However, ASA does not cover HTPs and advised that issue should be raised with Trading Standards in the UK.

Sheila Duffy

Chief Executive

ASH Scotland

SDuffy@ashscotland.org.uk

UK: is tobacco promotion through music making a comeback?

Tobacco references frequently occur in music and in the image portrayed by musicians, and these are often associated with themes of rebellion. Smoking content in the media is a causal factor in experimentation and uptake by young people, likely due to social learning. Furthermore, the tobacco industry has previously attempted to target ‘hip’ music events to sell cigarettes: For example, Camel cigarettes shifted marketing tactics in the 1990’s to target the hipster persona through events such as promotional music tours.

The 1975 are an English pop-rock band formed in 2002. In 2022 and 2023 they were touring to promote their latest album. Their first tour performance was in November 2022 at Madison Square Garden, which was filmed for Amazon Prime. They promoted the album in the UK throughout January 2023.

On 22nd January 2023, within the first couple of minutes at a gig at the enclosed Nottingham Arena, in Nottingham, England, the lead singer of the 1975 lit up a cigarette on stage, and this was followed by predominantly younger-appearing members of the audience doing the same. The show was split in two parts, the first half of which appeared to be portraying a sit-com set in a house and was arguably therefore more of a theatre performance. In the second half the band played all of their greatest hits. The lead singer smoked throughout both parts of the performance. On stage there was a packet of Marlboro reds with the distinctive red and white chevron design (See figures 1 and 2). On the Amazon Prime recording of the show in the US, however, a packet of Camels is seen instead.

• Download figure
• Open in new tab
• Download powerpoint

Figure 1

A picture from a concert in the UK (Liverpool), a red and white cigarette packet can be seen (Used with permission from stef0222 from Instagram).

• Download figure
• Open in new tab
• Download powerpoint

Figure 2

A picture from a video of a concert in the UK. The lead singer approaches a camera, removes a cigarette from what appears to be a packet of Marlboro cigarettes and smokes this while talking to the camera (Used with permission from jessfrost_x on TikTok).

Why were branded packets without health warnings used in the UK? Good question. While it is an offence to sell a branded packet in the UK, smoking from a branded packet is not an offence. Nevertheless, both the smoking and the branded packaging are normalising this behaviour on stage and in front of fans. The Framework Convention on Tobacco Control recommends a ‘comprehensive ban on advertising, promotion and sponsorship (to) reduce the consumption of tobacco products’. The UK does not allow tobacco advertising anywhere, including on tobacco packaging, and it does not permit smoking in indoor public places. There are exemptions to the smokefree legislation which state that ‘Where the artistic integrity of a performance makes it appropriate for a person who is taking part in that performance to smoke, the regulations allow for parts of premises in which a person performs to be not smokefree in relation to that person only during the time of the performance’. This exemption has been criticised as it puts smokers in the audience on ‘ nicotine alert’ and could be harmful to audience members’ health. Where the regulations ban smoking outright such as in Scotland, performers get creative, for example trading cigarettes for cups of tea, or removing content due to threats from local councils to shut down production. However, in England artists are aware that they are permitted to smoke due to the artistic integrity clause. Given the play-like nature of the first half of the 1975 show, it could be argued that the lead singer was playing a character who smokes, but this does not explain the continued smoking in the second half of the show which did not appear to be a characterisation. Perhaps now is the time to reassess whether such exemptions are justified, particularly when the activities on stage are influencing behaviour in the crowd, which is not covered by exemptions.

Research shows that exposure to smoking content in the media can influence young people to smoke, especially seeing an influential person engaging in this behaviour. This content is likely to reach a large audience through the live shows, and the recording available on Amazon Prime. In addition, it appears that a large number of images and videos are circulating on social media to predominantly young viewers. Many of these are captioned with the hashtag #dontlikementhols due to a viral meme from the band’s tour, in which the lead singer states ‘ Don’t throw menthols on the stage, we don’t like menthols’, implying that fans even throw cigarettes on the stage during the live show. To date the hashtag has had 28.3 million views on TikTok.

Young people are once again being exposed to branded packaging and smoking promotion through influential figures, benefitting only the interests of the tobacco industry. While no evidence has emerged that any tobacco companies are involved in or aware of this promotion, this needs to be explored further. If artists are again being paid to promote use of the single most deadly consumer product in history, as they were in the past, it is concerning. If they are doing it for free, it is even more disappointing.

Dr Alexander Barker

Lecturer

College of Health, Psychology and Social Care Department, University of Derby, UK.

A.Barker@derby.ac.uk

China: combatting illegal trade to enforce the e-cigarette flavour ban and protect youth

China has the largest number of people who smoke globally with 26.6% of people aged 15 and above smoking currently (approximately 307.6 million people – nearly 4.5 times the UK population). In October 2016, President Xi Jinping announced the Healthy China 2030 plan, which sets ambitious targets to achieve a decrease in the smoking rate of people aged 15 years above to 20% by 2030 with a range of tobacco control measures. Although e-cigarettes are not mentioned specifically in the plan, regulating increasingly popular e-cigarettes ought to form an important part of Chinese tobacco control policies.

In China, e-cigarettes can be produced and sold by subsidiaries of the China National Tobacco Company (CNTC) and private enterprises with valid tobacco monopoly licences. E-cigarettes are classified as tobacco products rather than alternatives to tobacco products, according to the Law of Protection of Minors (2020), the Implementing Regulation of the Tobacco Monopoly Law (2021) and the Administrative Measures of E-Cigarettes (AMEC, 2022). It is worth noting that all flavours of e-cigarettes are banned except for tobacco flavours, pursuant to AMEC and the national mandatory standard of e-cigarettes (GB 41 700–2022).

However, even with such restrictions in place, there are still many instances of illicit production and sale. Flavoured e-cigarettes are being sold using names such as “Milk Tea Cup” and “Cola Can”, on online sites and social media such as WeChat. These products are colourful, branded in the same way as food, beverages and toys, and marketed with flavours such as fruit and other enticing foods which are appealing to young people. Many do not carry any warning statement in Chinese, which is misleading. Many manufacturers, distributors and retailers of these illegal products do not obtain a valid license from the tobacco monopoly and their online sales channels do not verify the age of purchasers.

On February 28, 2023, the State Tobacco Monopoly Administration, which is the same institution as CNTC with another name, issued a circular on Launching a Special Inspection to Regulate the Order of the Electronic Cigarettes Market. The special inspection, from 28 February to 25 April 2023, involves local tobacco monopoly administrations and covers e-cigarette related enterprises and their manufacturing, distributing or retailing activities. In the last campaign between October 2022 and February 2023 to address flavoured e-cigarettes, 593 cases of illegal production, 115 cases of illegal distribution or retail without valid license and 363 cases of illegal sales to minors were investigated, with the value of illicit products estimated at RMB 507 million (approximately USD 73 million).

To better protect minors from the risks of flavoured e-cigarettes and other illicit products, better enforcement of the flavour ban is required. At a macro level, more efforts need to be put into youth prevention to reduce smoking initiation and achieve overall tobacco control objectives. While some local governments have promulgated smoke free policies, such as the amended Regulations on Tobacco Control of Shenzhen Special Economic Zone in 2019, a national comprehensive smoke free policy should be enacted as soon as possible, for significant reductions in smoking prevalence and to reduce tobacco product consumption among those who continue to smoke. Furthermore, a flavour ban should be applied to all types of tobacco products, to further deter minors from smoking. At a micro level, continuous investigation and inspection of the black market should be conducted. Only by strict regulation and supervision can the effectiveness of the flavour ban for e-cigarettes be ensured in the long term.

Dr. Jiayi JIANG

Post-doctoral researcher, Law School, Central South University, China

Dr. Zexing ZHENG

Lecturer, Law School, Central South University, China

xing986@126.com

The research is funded by the the Postdoctoral Research Fund of Central South University.

Sri Lanka: tobacco industry pushes back against flavour ban

Flavoured tobacco is defined as tobacco, or tobacco containing products, impregnated with external flavours and scents to increase tobacco palatability. Flavours often mask the tobacco taste and smell while additives such as menthol stimulate a ‘cooling’ effect which is known to entice non-smokers in certain groups such as young adults and women. Flavour bans are being implemented in countries around the world to prevent smoking initiation and maintenance.

The National Authority on Tobacco and Alcohol (NATA) which was established by the NATA Act No 27 of 2006, is the state authority of Sri Lanka on tobacco and alcohol control. The NATA Act is the main legislative framework for alcohol and tobacco control in Sri Lanka and its amendment “The Prohibited Tobacco Products Regulations, No 1 of 2016” bans “manufacture, import, sell or offer for sale” of “any flavoured, coloured or sweetened cigarette that contains tobacco”.

The Ceylon Tobacco Company (CTC) holds the monopoly of the tobacco market in Sri Lanka. The majority (84.13%) is owned by British American Tobacco (BAT), with Philip Morris International also owning a minor stake (8.32%). CTC is responsible for the manufacture and distribution of all cigarette brands in Sri Lanka. In 2014, media reported that CTC tried to introduce a berry flavoured cigarette. An article in a national newspaper quoted an unnamed research analyst stating the flavoured cigarette was being introduced to attract “new segments – possibly females”. Despite the newspaper article, this cigarette was not found in the market afterwards.

However, the CTC portfolio has included a flavoured capsule cigarette under the brand name ‘Dunhill Switch’ since 2014. A capsule cigarette is a cigarette containing a gelatin capsule which releases flavours when crushed during smoking. The Dunhill Switch is sold as a “premium cigarette” and reportedly accounted for more than 65% of the total Dunhill volume in 2014. CTC also describe how they used a limited-edition capsule cigarette called ‘Dunhill Ice’ to market the Dunhill switch among the population. The Dunhill Switch has featured in all subsequent CTC annual reports to date. In 2021, the latest published annual report of CTC, 12% of the cigarette market in Sri Lanka was made up of Dunhill.

In the same report, two new double capsule cigarettes ‘Dunhill Double Capsule Yellow’ and ‘Dunhill Double Capsule Green’ were introduced. The Dunhill Switch is still widespread and available in the market despite the Prohibited Tobacco Products Regulations, implemented from 2016, which prohibit manufacture and distribution of flavoured cigarettes. Six years have passed since the regulations came into effect, but the tobacco industry have continued introducing new flavoured cigarettes to the Sri Lankan market. In January 2023, NATA finally attempted to act, and got the Government to analyse the contents of Dunhill Switch. Based on the report, they attempted to take legal action against CTC, which led to a secondary litigation from CTC against NATA. Court proceedings are still underway and it remains to be seen whether tobacco control will prevail.

P A D S Perera

dp2000shashen@gmail.com

D J A Gnanarathna

U V M Laksith

K A S V Somanayake

All authors are medical students at the Faculty of Medicine, University of Kelaniya

USA: tobacco companies target customers with menthol alternatives to circumvent upcoming California sales ban

In 2020, California lawmakers achieved a public health victory in passing a law banning the sale of flavoured tobacco products. The law came in response to the toll that menthol plays in smoking initiation, youth use, and the disproportionate impact on Black communities, as well as the high rates of youth use of flavoured e-cigarettes. Despite the sales ban’s potential to save lives, tobacco industry opposition came swiftly and powerfully. Shortly after its passage, tobacco companies successfully fought to delay implementation by spending $21 million to collect signatures to force a public vote on the measure. Fortunately, on November 8, 2022, California residents voted overwhelmingly (63% to 37%) to uphold the flavoured tobacco sales ban. But the industry was undeterred and quickly sought appeals, including a failed attempt to have the Supreme Court prevent the law from taking effect. While spending millions to try to stop the law, tobacco companies simultaneously prepared for its passage by developing new cigarette products to appeal to menthol tobacco users.

Soon after the law was approved, RJ Reynolds Tobacco Company and ITG Brands began marketing new non-menthol variants of their Camel and Kool cigarette brands, respectively. Direct mail advertisements introduced consumers to Camel Crisp and Camel Crush Oasis (figure 3), messaging that: “Your favourite menthol styles are gone, but we’ve crafted two new non-menthol blends with you in mind.” Similarly, the Kool website (figure 4) introduced Kool Filter Kings and Kool Blue (both non-menthol), as “Your answer to California’s menthol ban.”

• Download figure
• Open in new tab
• Download powerpoint

Figure 3

Direct mail marketing sent to California residents promoting new non-menthol camel cigarettes. Source: Stanford Research into the Impact of Tobacco Advertising (SRITA).

• Download figure
• Open in new tab
• Download powerpoint

Figure 4

Screenshot of the Kool cigarette website promoting new non-menthol cigarettes in California. Source: Stanford Research into the Impact of Tobacco Advertising (SRITA).

This industry response in California follows those of other companies around the world debuting new products in response to menthol product sales bans. In the United Kingdom, Imperial introduced menthol and capsule roll-your-own filter tips. In Denmark, British American Tobacco introduced cigarettes with menthol recessed filters. In Canada, flavour cards and drops were introduced to add menthol flavour to non-menthol cigarettes.

At the same time that numerous cigarette manufacturers impede regulations in an effort to protect sales for combustible products, they boast about “ harm reduction” in public relations and marketing communications. Yet when faced with an opportunity to support policies that will likely reduce cigarette initiation and promote smoking cessation in California, the tobacco industry spent millions attempting to delay and block the legislation.

The latest actions of the tobacco industry should surprise no one familiar with its long history of deceit, manipulation, and targeting of youth and minority groups. Industry responses to the California flavour product sales ban suggest that flavours, and menthol in particular, are regarded by the industry as important to sustaining tobacco product use. Tobacco companies remain firmly committed to maintaining cigarette sales. In fact, one estimate projected the 2 year delay in implementing the California law would result in an additional estimated $1.1  billion in menthol cigarettes sold. These actions are a reminder to the tobacco control community to remain vigilant against industry manoeuvres. Other jurisdictions and countries considering restrictions on flavoured tobacco product sales should prepare for industry attempts to delay and circumvent these policies.

Jodie Briggs

Science Editorial Director

Schroeder Institute, Truth Initiative; Washington, DC, USA

jbriggs@truthinitiative.org

Andrew B. Seidenberg

Research Director

Schroeder Institute, Truth Initiative; Washington, DC, USA