Draft Ecig Proposal Bans All UK Advertising

POTV has been passed what appears to be a draft version of the Advertising Provisions covering electronic cigarette advertisements in the UK.  The timings for the introduction of the provisions is unknown but the contents, if we have interpreted them correctly, will give a blanket ban on all ecig advertising in the UK.

The document covers “No advertising of electronic cigarettes in the press etc” – making it an offence not only to publish an advert but also to procure an advert in a publication therefore jointly making the advertiser and the buyer of the advert culpable for any transgression.

Secondly the article covers “No advertising of electronic cigarettes in information society services” – covering pretty much all electronic media, websites, apps, blogs etc. 

3.1 “No person may include, or procure the inclusion of an electronic cigarette advertisement in an information society service provided to a recipient in the United Kingdom.”

3.2 “No service provider established in the United Kingdom may include an electronic cigarette advertisement in an information society service provided to a recipient in an EEA state other than the United Kingdom (“a non-UK-EEA state”).”

3.3 “No proceedings for an offence under paragraph (1) may be instituted against a service provider who is established in a non-UK-EEA state, unless the derogation condition is satisfied.”

 “Sponsorship of events etc. - No person may sponsor, with the aim or effect of promoting electronic cigarettes or refill containers”

It is currently unclear as to what the difference is between promotional material and what is informational material.  Could it perhaps be that reviews are also covered by this stringent regulation?

It is good that we are at last starting to see what the TPD for citizens of the UK will look like and we will keep you up to date with more news as we receive it. It is disappointing that the Government appears to be legislating so hard against a product that is less harmful than cigarettes and has the potential to improve the lives of thousands of people in this country with such a draconian blanket ban.  This is what we had expected though so it comes as no surprise.

The full copy of the document is copied below:

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PART 7

Electronic cigarette advertising

Interpretation of Part 7

1.—(1) In this Part “electronic cigarette advertisement” means a commercial communication with—

   (a) the aim of promoting an electronic cigarette or refill container; or

   (b) the direct or indirect effect of promoting one.

 (2) In this Part—
   “the E-Commerce Directive” means Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)(a);

   (a) OJ L 178 17.7.2000, p.1. [The Directive has been incorporated into the Agreement on the European Economic Area by Decision 91/2000 of the EEA Joint Committee of 27 October 2000 (OJ L 7, 11.1.2001, p.13)]

   (b) OJ L 204, 21.7.1998 p.37, as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p.18).

   (c) Cm 7310.

“information society services”—

   (a) has the meaning given in Article 2(a) of the E-Commerce Directive (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations(b), and

   (b) is summarised in recital 17 of the E-Commerce Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”;

   “recipient” means a person who (whether for professional purposes or otherwise) uses an information society service, in particular for seeking information or making it accessible;

   “service provider” means a person providing an information society service;

   “the EEA market” means the market of one or more EEA states; and

   “third country” means a state which is not an EEA state.

  (3) For the purposes of this Part, a service provider is established in a particular EEA state, if the service provider—

   (a) effectively pursues an economic activity in that EEA state using a fixed establishment for an indefinite period; and

   (b) is a national of an EEA state, or a company or firm as mentioned in Article 54 of the Treaty on the Functioning of the European Union (c).

 (4) The presence or use in a particular place of equipment or other technical means of providing an information society service is not itself sufficient to constitute the establishment of a service provider.

 (5) Where it cannot be decided from which of a number of establishments a given information society service is provided, that service is to be regarded as provided from the establishment at the centre of the service provider’s activities relating to that service.

No advertising of electronic cigarettes in the press etc

2.—(1) No person may publish, or procure the publication of, an electronic cigarette advertisement in a newspaper, periodical or magazine.

 (2) No person may sell, offer for sale or otherwise make available to the public a newspaper, periodical or magazine containing an electronic cigarette advertisement.

 (3) Paragraphs (1) and (2) do not apply—

   (a) to a publication which is intended exclusively for professionals in the trade of electronic cigarettes or refill containers; or

   (b) to a publication which is printed and published in a third country and is not principally intended for the EEA market.

No advertising of electronic cigarettes in information society services

3.—(1) No person may include, or procure the inclusion of an electronic cigarette advertisement in an information society service provided to a recipient in the United Kingdom.

 (2) No service provider established in the United Kingdom may include an electronic cigarette advertisement in an information society service provided to a recipient in an EEA state other than the United Kingdom (“a non-UK-EEA state”).

 (3) No proceedings for an offence under paragraph (1) may be instituted against a service provider who is established in a non-UK-EEA state, unless the derogation condition is satisfied.

 (4) The derogation condition is satisfied where the institution of proceedings—

   (a) is necessary for the purposes of the protection of public health or the protection of consumers (“the objective”);

   (b) relates to an information society service that prejudices the objective or presents a serious and grave risk of prejudice to the objective; and

   (c) is proportionate to the objective.

 (5) Paragraphs (1) and (2) do not apply—

   (a) to an information society service which is intended exclusively for professionals in the trade of electronic cigarettes or refill containers; or

   (b) to an information society service where the service provider is established in a third country and the service is not principally intended for the EEA market.

 (6) The Schedule (liability of intermediary information society service providers) has effect.

Sponsorship of events etc.

4.—(1) No person may sponsor, with the aim or effect of promoting electronic cigarettes or refill containers—

   (a) an event or activity which takes place in or has an effect in two or more EEA states (“a cross-border event or activity”); or

   (b) an individual taking part in a cross-border event or activity.

 (2) In this regulation “sponsorship” means any form of public or private contribution in the course of business to any event, activity or individual.

Offences and Defences

5.—(1) A person is guilty of an offence if that person breaches any provision of regulations [2] to [4].

 (2) In any proceedings for an offence against a person under regulation [2] to [4], it is a defence that the person exercised all due diligence to avoid committing the offence.

Amendment of section 319 of and Schedule 11A to the Communications Act 2003 (product placement of electronic cigarettes on television)

6.—(1) Section 319 of the Communications Act 2003 (OFCOM’s standards code) is amended as follows—

   (a) at the beginning of subsection (9) insert “Subject to subsection (10),”;

   (b) after subsection (9) insert—

         “(10) Insofar as it relates to product placement falling within paragraph 4(d) of Schedule 11A (electronic cigarettes and electronic cigarette refill containers) subsection (2)(fa) applies only in relation to programmes the production of which begins on or after 20th May 2016”.

 (2) In Schedule 11A (Restrictions on Product Placement)—

   (a) at the end of paragraph 4(b) omit “or”;

   (b) at the end of paragraph 4(c) add—

      (i) “; or

      (ii) (d) of any electronic cigarette or electronic cigarette refill container.”;

   (c) in paragraph 6(2)(a) omit “electronic or smokeless cigarettes, ”; and

   (d) in paragraph 9 after the definition of “connected” insert: —

       ““electronic cigarette” has the meaning given in section 368R;

       “electronic cigarette refill container” has the meaning given in section 368R;”.

Amendment of Part 4A of the Communications Act 2003 (on-demand programme services)

7.—(1) Part 4A of the Communications Act 2003(a) (on-demand programme services) is amended as follows.

 (2) In section 368F (advertising) after subsection (1)(b) add—

   (a) 2003 c.21 Relevant amendments were made by S.I. 2009/2979, S.I. 2090/2979 and S.I. 2010/831.

   “(c) an electronic cigarette or electronic cigarette refill container.”.

 (3) In section 368G (sponsorship) after subsection (2) insert—

  “(2A) An on-demand programme service or a programme included in an on-demand programme service must not be sponsored for the purpose of promoting an electronic cigarette or electronic cigarette refill container.”.

 (4) In section 368H (product placement)—

   (a) at the end of subsection (4)(b) omit “or”; and

   (b) at the end of subsection (4)(c) add—

      “; or

      (d) it is of an electronic cigarette or electronic cigarette refill container.”.

   (c) in subsection (15) after “section” insert “, except for subsection (4)(d), ”;and

   (d) after subsection (15) insert—

      “(15A) subsection (4)(d) applies only in relation to programmes the production of which begins on or after 20th May 2016.”.

 (5) In section 368R (interpretation of Part 4A) in subsection (1) after the definition of “children’s programme” insert—

“electronic cigarette” means a product that—

   (a) can be used for the consumption of nicotine-containing vapour via a mouth piece, or any component of that product, including a cartridge, a tank and the device without cartridge or tank (regardless of whether it is disposable or refillable by means of a refill container and a tank, or rechargeable with single use cartridges), but

   (b) is not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 (S.I. 2012/1916) or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002 (S.I. 2002/618);

   “electronic cigarette refill container” means a receptacle that—

   (a) contains a nicotine-containing liquid, which can be used to refill an electronic cigarette, but

   (b) is not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002;”.

Savings (for product placement of electronic cigarettes on television in programmes made before 20th May 2016.)

8. In the case of a programme the production of which began before 20th May 2016, section 319 of and Schedule 11A to, the Communications Act 2003 apply as if they had not been amended by these Regulations.

SCHEDULE

Liability of intermediary information society service providers

Mere conduits

1.—(1) A service provider does not contravene regulation [3] only by providing so much of an information society service as consists in—

   (a) the provision of access to a communication network, or

   (b) the transmission in a communication network of information provided by a recipient of the service.

 (2) But sub-paragraph (1) applies only if the service provider does not—

   (a) initiate the transmission;

   (b) select the recipient of the transmission; or

   (c) select or modify the information contained in the transmission.

 (3) For the purposes of sub-paragraph (1), the provision of access to a communication network and the transmission of information in a communication network include the automatic, intermediate and transient storage of the information transmitted if—

   (a) the storage is solely for the purpose of carrying out the transmission in the network; and

   (b) the information is not stored for longer than is reasonably necessary for the transmission.

Caching

2.—(1) A service provider does not contravene regulation [3] by storing information provided by a recipient of the service for transmission in a communication network if the first and second conditions are met.

 (2) The first condition is that the storage of the information—

   (a) is automatic, intermediate and temporary; and

   (b) is solely for the purpose of making more efficient the onward transmission of the information to other recipients of the service at their request.

 (3) The second condition is that the service provider—

   (a) does not modify the information;

   (b) complies with any conditions attached to having access to the information;

   (c) in a case to which sub-paragraph (4) applies, promptly removes the information or disables access to it.

 (4) This sub-paragraph applies if the service provider obtains actual knowledge that—

   (a) the information at the initial source of the transmission has been removed from the network;

   (b) access to it has been disabled; or

   (c) a court or administrative authority has required the removal from the network of, or the disablement of access to, the information.

Hosting

3.—(1) A service provider does not contravene regulation [3] only by providing so much of an information society service as consists in the storage of information provided by a recipient of the service, if—

   (a) when the information was provided, the service provider had no actual knowledge that it contained an electronic cigarette advertisement;

   (b) where the service provider subsequently obtained such actual knowledge, the service provider expeditiously removed the information or disabled access to it.

 (2) Sub-paragraph (1) does not apply if the recipient of the service is acting under the authority or control of the service provider.

Dave Junglist

Journalist at POTV

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Dave Junglist is co-owner of Planet of the Vapes and has been vaping since 2015.  He spent his early years with his head in a bass bin and was a very committed and experienced smoker.  He had his first cigarette at the age of 13 and just knew it was for him.  He did stop briefly with the aid of patches but reverted quickly and became a ‘secret’ smoker, working hard to keep his weak will from the attention of his family.  Vaping made an honest man of him and for this he is forever thankful. He has been involved in websites since completing a degree in Environmental Science in the late nineties.  At that time there was pretty much no contact with computers but on joining the regular workforce and deciding that the world-wide-web was the future he blagged his first job as a web designer and never looked back. As you would expect from a junglist, Dave likes his beats and is most comfortable when the bass is wobbly.