The UK Advertising Standards Authority (ASA) recent ruling in VPZ VapeClinic, reminds e-cigarette producers and retailers that statements by health authorities regarding a category of products cannot simply be translated into product claims in advertising, at least not without specific authorisation from the medicines regulator.
According to Public Health England (2021), using a vaping product (or an e-cigarette) is the most popular aid used by people trying to quit smoking (in 2020, 27.2% of people used a vaping product in a quit attempt in the previous 12 months compared to 15.5% who used licensed nicotine replacement therapies (NRT). PHE also noted that vaping is positively associated with quitting smoking successfully; that it is important it is for people who smoke to have access to a wide choice of cessation aids; and that the extensive use of vaping products in quit attempts compared with licensed medication suggests vaping products may reach more people who smoke and so have more impact than licensed products.
Against that background, the website of an e-cigarette retailer, VPZ Vape Clinic, stated “Make the switch today with the VPZ Vape Clinic”, “Book a FREE 30 minute appointment today. Quit, or your money back. Vape Clinic by VPZ is a dedicated, one-to-one consultation with our e-cigarette specialists. We’ll guide you through various cigarette alternatives to find the perfect fit for your needs so that you can start your journey to becoming smoke free. We’ll continue to offer guidance and help on your cigarette free journey and if after 4 weeks you’re not happy with your cigarette alternative, you’ll get your money back.” Alongside that, “QUIT SMOKING OR YOUR MONEY BACK” was stated in large font.
The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code), reflecting the law, states that for e-cigarettes, “Marketing communications must not contain medicinal claims unless the product is authorised for those purposes by the [Marketing and Healthcare products Regulatory Agency.]” The ASA ruled that the website included several smoking cessation claims which are medicinal and therefore the advertising was banned. It is clear that if e-cigarette producers want to claim that their products are effective smoking cessation aids in line with the PHE view they cannot rely on the statements of public health authorities relating to the category and they need to seek marketing authorisation from the MHRA for the specific product.
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