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.