BAT under investigation by the ASA for promoting e-cigs to young people on social media
“BAT is undertaking a concerted, consistent and systematic approach to its online promotion of its Vype nicotine e-cigarettes… outside the Guidance… and… the Tobacco and Related Products Regulations 2016 (TRPR).”
Vype has its own website, which includes factual information, and is likely to only be seen by those seeking it out. However, BAT’s social media promotions can and will be seen by young people not seeking them, through the sly use of hashtags. The content goes beyond factual material, and is clearly brand promotion, aimed at young people.
BAT extends the reach of its Vype advertising on Instagram by pairing hashtags related to significant cultural or popular current events, completely unrelated to Vype or its product features. Recent examples include: #Oscars2019 #bohemianrhapsody; #bestactor; #baftas2019; and #londonfashionweek. Celebrity hashtags are also being used: CTFK report that one recent BAT post included the hashtag #LilyAllen, which has nearly 83,000 Instagram posts and would be seen by anyone searching for #LilyAllen on the platform. Lily Allen has nearly 6 million followers across social media platforms.
Regulation 43 of the TRPR 2016 states that: “No person may in the course of a business include, or procure the inclusion of, an electronic cigarette advertisement in an information society service provided to a recipient in the United Kingdom.” An electronic cigarette advertisement is defined in the Regulations as: “an advertisement with (a)the aim of promoting an electronic cigarette or refill container; or (b)the direct or indirect effect of promoting one”. Breaching the Regulations is an offence. The two available defences are that the person charged exercised all due diligence to avoid committing the offence, or that they did not know and had no reason to suspect that the advertisement was an electronic cigarette advertisement. It is hard to see how either could apply in this case.
Examples under Investigation include: