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Letting the Mad Men Take Over the Asylum: How Advertising Concerns Might Influence the Regulation of E-Cigarettes

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In September, I contributed to a BBC radio programme on the vexed topic of the advertising of e-cigarettes. It was a successful venture on the whole (they left in my vaguely amusing reference to Harold Wilson’s pipe but removed my whimsical questioning-out-loud of my qualification, as an Irishman, for the task of speaking about the nature of the British psyche). This was not the first media request we had received on the topic of e-cigarette advertising and following it I was left with a sense of the conundrum which it poses for those who seek the specific regulation of e-cigarettes.

Regulating Advertising versus Regulating Product

The concerns expressed about e-cigarette advertising, particularly on television are twofold: firstly, that it may target children and secondly that a portion of this advertising (and likely increasingly more) is being done by large tobacco manufacturers. Of course in a conventional market ecosystem, guidelines for the advertising of any particular product would flow logically from its overarching regulatory framework. But these concerns mean, as its seems to me, that there is a real possibility that preferences about how (and perhaps by whom) the products should be advertised will, if not dictate, certainly inform how they are regulated. For some, in the world of e-cigarettes, it is not that the medium is the message but that the author itself is.

I have spoken recently on these pages about the unfolding trend to medicalization of e-cigarettes. For all the restrictions that the medical licensing model would bring to the e-cigarette sector it does imply, in contrast to regulation as tobacco products (or of course prohibition) much greater freedom to advertise.

Medicalisation Implies Scope for Marketing

Taking the UK as an example, the MHRA has announced that from 2016 e-cigarettes will be regulated as medical products, which in turn means that their marketing will be governed in line with the so-called ‘Blue Guide’. These guidelines state broadly that ‘Advertising of medicines is acceptable provided it is in line with legislation and agreed standards of good practice’. The regulations do include specific restrictions on the advertising of particular product types especially in terms of the types of claims that manufacturers can make for their products. However, in practice this is how things currently stand for e-cigarette advertising in the UK and the Blue Guide would not introduce any additional general curtailment on the timing nor medium of advertising, nor on advertiser themselves. And would leave, therefore, concerns about advertising appealing to minors and television advertising by Big Tobacco, unaddressed.

E-Cigarette Advertising Spend Soars in the US

In the world’s largest e-cigarette market, the US, people are taking note. Recent data from Citibank suggests that spending on the TV advertising of e-cigarettes increased 20% in 2012 and I estimate that up to US$100 million will be spent on advertising e-cigarette products in the US in 2013. Two of the major tobacco manufacturers, Lorillard and Reynolds American have recently launched television ads for their e-cigarette brands, Blu and Vuse. On Tuesday the 24th September the Attorneys General of 40 US states put their names to a letter urging the FDA to regulate e-cigarettes as tobacco products, citing in particular the marketing and advertising of the products.

The conflict here is between medical-type regulation which would control the content of the products and their distribution, but allow, as current regimes stand slightly less oversight of the type of marketing which could be done in support and regulation of e-cigarettes as tobacco products which has implications for their reach and access to consumers but also ensures that consumers cannot by targeted by 'unscrupulous' advertisers. There are several unresolved (and perhaps unresolvable) tensions here but concerns about letting the Mad Men loose may mean that the trend to medicalisation for e-cigarettes is not quite as inevitable as it had seemed.

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