Will e-cigarette advertising be allowed in Australia?

With the US Food and Drug Administration (FDA) deciding not to place advertising restrictions on e-cigarettes, allowing them to be advertised across mainstream media, Miranda Ward looks at the situation in Australia.

At the end of last month, the FDA in the US introduced a handful of new rules it would enforce relating to e-cigarettes, notably deciding not to weigh in on advertising restriction, meaning that the e-cigarette industry, which currently is worth US$2 billion globally, will be able to continue to advertise on TV, radio, in print and on billboards as well as things like NASCAR sponsorships. But in Australia, the products are still banned from advertising on mainstream media.

Electronic, or e-cigarettes, are battery powered devices which heat a liquid in them to produce a vapour, simulating smoke. Some contain nicotine, whilst others do not. Whilst they are designed to help people stop smoking experts are divided as to the health benefits of them.

In Australia e-cigarette advertising generally falls under the Tobacco Advertising Prohibition Act 1992, with the act defining a tobacco promoting as anything that promotes smoking, the purchase or use of tobacco products, a registered trademark or registered design for tobacco products and ads with any words or designs or combinations of the two that are closely linked with a tobacco product.

Liberty Flights, an e-cigarette company based in the UK but expanding to Australia, told Mumbrella that the current restrictions and codes in place make it “tough” to promote their product.

Marketing director Simone Davis said: “For us it’s a real marketing challenge because of the restrictions in Australia, the aim is to create awareness that an alternative exists.  In creating that awareness, we’re trying to do that in a way that’s not targeting youth, re-socialising traditional cigarettes in any way because of the good work the Australian government and different bodies have done to put a stigma around smoking.

“It’s tough to create awareness when there are so many restrictions. We’re working in a field where there is now close to 11 million people globally using electronic cigarettes and even though we cannot make any claims of the benefits of switching to e-cigarettes, these people have basically stopped smoking and that’s a pretty profound thing considering the world has for such a long time done everything they can to try and convince people smoking is bad.

“From a marketing challenge it’s how do we create awareness, stay within the boundaries of trying to do the right thing but create awareness about an alternative that can make a difference without making any claims.”

While the restrictions in place are already tight, marketing for the products is beginning to be seen.

The Ad Standards Board has held up two complaints relating to advertisements for e-cigarette products within the last 18 months.

In March last year it upheld a complaint regarding an online ad for a fruit flavoured vapour, which was both tobacco and nicotine free, for e-Shisa Pipes which features claims that it was the safe way to smoke due to no toxins or tar being utilised. The video ad showed people smoking the product.

The board ruled it glamorised smoking and a “depiction of smoking in this manner is clearly in contrary to community standards on health and safety”.

In October last year, another complaint relating to an e-cigarette brand was held up for the same reason. The spot for Clever Smoke featured people smoking both real and electronic cigarettes.

As the ad showed people using the product and seeming to enjoy it, the board ruled it was a “depiction which is suggestive of smoking being pleasurable and this glamourises smoking”.

“Regardless of the product, if something glamorises smoking the board believes that breaches the health and safety provision of the code,” ASB CEO Fiona Jolly said of the rulings.

“We don’t look at the product, our assumption is if it’s being advertised than the product is legal to be advertised. We just look at whether the content of how its being advertised meets the requirements set out in the advertiser’s codes.”

When it comes to the products making claims around their ability to help consumers quit smoking cigarettes, Jolly explained it is up to the Therapeutic Goods Administration (TGA) to assess that.

“Claims about a product having a therapeutic aid means that the product and the claim have to be assessed by the Therapeutic Goods Administration. We don’t look at truth and accuracy, so any suggestion that they make this will help you stop smoking, we won’t look at whether it does or not, that’s for the government to decide,” said Jolly.

Currently, e-cigarettes “have not been evaluated for quality, safety or performance by the TGA“.

The TGA website reads: “Unlike Nicotine Replacement Therapy (NRT) products, which have been rigorously assessed for efficacy and safety and, therefore, approved by the Therapeutic Goods Administration for use as aids in withdrawal from smoking, no assessment of electronic cigarettes has been undertaken and, therefore, the quality and safety of electronic cigarettes is not known.”

The Australian Association of National Advertisers (AANA) reinforced the role of the TGA when it comes to assessing any marketing from e-cigarettes, with head Alina Bain telling Mumbrella: “The Therapeutic Goods Administration must approve e-cigarettes which claim to help people quit smoking as they are therapeutic goods before they can legally be sold in Australia. Complaints about such products and related advertising and marketing are in the remit of the TGA.”

Liberty Flights launched this campaign to introduce  the brand to the Australian market in December last year.

When asked if the company had any concerns it may go against the code by glamourising smoking and risk falling foul of the ASB, Liberty Flights director Andrew Dent said: “No, I don’t have any concerns at all.”

“That ad is an online awareness campaign, it was not made to go into cinema or on TV. However, we have looked at cutting it and changing it to comply with the cinema regulations in order to put it into cinema.”

The company is planning to follow it up with a campaign featuring interviews with Australians who have made the switch from cigarettes to e-cigarettes who will “voice the benefit that they perceive for making the switch from traditional smoking to vaping,” explained Dent.

Marketing director Davis explained such a tactic may give the company some wiggle-room within the current legislation, adding: “The most powerful thing for us is going to be around customers as advocates for making the switch and them being able to share their voice.

“The customer experience is so profound for those who have made the switch we have to engage that and leverage that to help spread the word, it’s around advocates who help spread the word. We’ll have to use that kind of approach as opposed to a more traditional marketing approach due to the restrictions.

“What body can stop a consumer’s voice? There’s a right to free speech. If people can share their experiences through the different types of media that are available, that’s the avenue that we’re working on, and I don’t think anyone has the right to stop that. You can’t stop that personal view.”

AANA’s Bain said: “The AANA Codes cover all marketing over which the brand has a reasonable degree of control and this includes social media and user generated comments.  We have released Practice Guidelines for the industry which confirm this position and which also provide guidance.” 

Miranda Ward


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