Could Ofcom's regulation of e-cigarette advertising silence all vaping advocates?
Wednesday, April 13, 2016 at 15:27 Broadcasting regulator Ofcom has today published a document entitled 'Regulation of e-cigarette advertising and sponsorship on television and radio'.
The document lists amendments that have been made to UK broadcasting codes concerning e-cigarettes. According to Ofcom:
The changes arise from the UK Government’s implementation of the Tobacco Products Directive 2014 (“TPD”). Among other provisions, the TPD prohibits advertisements for electronic cigarettes and refill containers in broadcast television and radio services. It also prohibits programme sponsorship which has the aim or effect of promoting such products.
In order to implement these provisions of the TPD, the Secretary of State for Health has directed Ofcom under section 321(6) of the Communications Act 2003 to make specified changes to rules in the relevant codes. Ofcom will enforce the rules in the Broadcasting Code, and the Advertising Standards Authority will enforce the rules in the BCAP [Broadcast Committee of Advertising Practice] Code.
I knew Article 20 of the TPD prohibited “commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers”.
What I didn't know is that Article 20 also prohibits “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” [my emphasis].
What does this mean in practise?
An extreme interpretation is that anyone who wants to promote or endorse e-cigarettes will be prohibited from doing so on television or radio.
That means public health campaigners and other e-cig advocates could in theory be banned from phone-in programmes or even from giving interviews for fear they will directly or indirectly promote the product.
What on earth is Ofcom playing at? I can't believe this is what they seriously intend but that's how it could be interpreted.
Read Ofcom's statement and amendments and tell me if I'm wrong.
While you're at it, check out this passage. It's in a letter from Jane Ellison, Secretary of State for Health, to Ofcom:
Member states shall ensure that:
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.
There it is again, "any form of public or private contribution".
What does this actually mean? It's so vague, so woolly, it could mean almost anything.
On its website Ofcom describes its purpose as follows:
The Communications Act says that Ofcom’s principal duty is to further the interests of citizens and of consumers, where appropriate by promoting competition. Meeting this duty is at the heart of everything we do.
If e-cigarettes are a harm reduction product (as most people agree they are), how does Ofcom's regulation "further the interests of citizens and of consumers"?
As readers of this blog know all too well I have serious differences with some e-cigarette advocates, not least the Royal Society for Public Health which wants to ban smoking outside pubs in order to force smokers to switch to vaping.
Nevertheless I would be interested to know what RSPH think of Ofcom's absurd regulation because, in theory, they too could be prohibited from going on TV and radio for fear they might say anything that could be said to promote – directly or indirectly – e-cigarettes.
If I'm reading this all wrong please tell me and I shall slink away to my bat cave.
In truth I suspect common sense will prevail because it reminds me of when tobacco advertising and sponsorship was banned in 2002.
For a while we feared websites like Forest's could be prohibited on the grounds that defending smokers' rights could be misconstrued by some as promoting smoking.
It isn't, of course, it's very different, but the threat hung over us for some time. In the event we carried on as before and took no notice of those who wanted to silence us.
The problem advocates of e-cigarettes have is that every time they open their mouths they are effectively promoting a product (albeit a harm reduction product).
This is quite different to what Forest does. We promote and defend smokers' rights. We never promote a product.
Anyway, faced with this absurd EU-inspired document what are e-cigarette advocates, and the relevant broadcasters, supposed to do?
I've no idea but we'll soon find out.
Reader Comments (6)
A liberal reading 'could' interpret the intention as being a prohibition on promotion of a specific product, but I'm not really naive enough to believe that and the inclusion of the "...direct or indirect..." promotion kind of makes it moot anyway.
Simon, I did tell you not to read vaping forums because they are where you get all the wrong info from.
This is something that bounces around occasionally on those sites and is entirely wrong. Firstly, contributions doesn't mean contributing to a debate or discussion, it means either a financial contribution, or sponsorship, or some sort of benefit in kind to the programme.
Secondly, there is a difference between promotion and education. Even a vendor would be able to talk about e-cigs as long as they are educating on the subject and not advertising product. Advocates can therefore say just about anything they like as long as they are not paid to promote a particular product.
Thirdly, I don't think it was PHE who wanted smoking banned outside to encourage vaping, it was the RSPH.
Here's an explanation from 2013 by someone you may have heard of. ;)
It shows the despair they are in Simon. They don't see the wider picture.
Just out of interest, has anyone noticed in the latest e-cig advert to hit our screens (the one which seems to be an homage to the old Marlborough-man cowboy type), that no actual vapour is shown? I wonder if this is deliberate – vape advertisers having rumbled the fact that Tobacco Controllers dislike e-cigs because the vapour makes the activity “look like smoking.” Unfortunately, the absence of vapour instead tends simply to make it look as if said cowboy has stopped for a break from driving across the plains (or whatever he’s doing) in order to drag on the end of a felt-tip pen with a light on the end of it!
You're right, Dick. RSPH not PHE. I have corrected it.
Re Ofcom's regulation, you may be correct but I don't think there is any mention of 'financial' contribution in the document so it's open to interpretation and that in itself is unsatisfactory.
I might add this is not uncommon in tobacco control circles. It allows regulations to be extended on a whim or without further discussion. In this instance, as I said in my post, common sense ought to prevail but it was worth pointing out, I think. (Vigilance and all that.)
Btw, I like your suggestion that even vendors are in the business of education rather than promotion. Good luck with that argument!
PS. Never read a vaping forum. This is all my own work, mistakes included.
I have to say Misty, ecig ads appear to have dropped all the offensive stuff about smoking and smokers. Not long ago they focussed on the smoker stinks aspect to see their product and one from Njoy was vile in trying to push alleged friends of smokers to quit. Friends accept people for what and who they are and that means accepting they smoke and not, like Njoy suggested : friends don' t let friends smoke.
The fact ecig ads have stopped bashing smokers is a good move