Vaping products - tightening rules on advertising and promoting: consultation analysis

5 Brand-sharing in Products and Services

5.1 Question 4 – Brand-sharing

Brand-sharing is the practice where one business’s products or services carry the insignia, logos, colours or other identifiable markings of an unrelated product as a way of promoting or marketing goods or services. The Scottish Government proposes to make brand-sharing between NVPs and other marketed commercial goods an offence.

Brand-sharing was included in the advertising ban on tobacco to make sure tobacco companies would not be able to continue to promote their brand or products on non-tobacco products such as children’s toys or e-cigarettes which could be used as an alternative to advertising. The Scottish Government wish to mirror this to ensure brand-sharing does not become an alternative means to promote uptake of vaping products. Restricting brand-sharing would, in this instance, prohibit vaping products from either carrying another product’s brand on a device or packaging or have the branding of a vaping product on any other products.

Do you support the proposal to make brand-sharing an offence?

Table A4 (Appendix A) provides the quantitative response to Question 4.

The views of respondents are mixed:

• 47.9% of all respondents support the Scottish Government proposal to make brand-sharing an offence. The level of support among organisation respondents is higher than among individual respondents (73.7% and 46.6% respectively). Among organisation respondents this includes local government, health organisations, and other organisations. Roughly the same proportion of individual respondents agree with the proposal as disagree.
• A slightly smaller proportion of respondents do not support the proposal (44.6%). Individuals are more likely than organisations to not support the proposal (46.1% and 15.8% respectively). Among organisation respondents this includes the tobacco industry, followed by but to a lesser extent the vaping sector.

5.1.1 Respondents who support the proposal

Around 15% of respondents who support the proposal to make brand-sharing an offence provide qualitative feedback. Most of the comments are from individual respondents followed by health organisations.

The main themes raised in support of the proposal are summarised below.

Theme 1: A proportionate approach

Respondents, including individuals and health organisations, agree that products meant for adults should not be promoted on non-tobacco products aimed at children and young people. Some respondents note concern over online brand sharing through social media. The proposal is considered by these same respondents to be an “appropriate and proportional approach” to reduce “influencing” children, to avoid "glamorising" vaping to non-smokers, and to avoid making the “product appear safe/less harmful”.

“Putting adverts for smoking, drinking, drugs and vaping on children’s toys is wrong. I only add vaping to this list, not because I think vapes are harmful, but that they are an adult product”.

Individual

Theme 2: Bringing advertising in line with that for tobacco

Respondents (e.g. health organisations, local government, individuals) feel the proposals would bring advertising legislation for vaping products in line with/mirror that for tobacco. There is reference within these consultation responses to understanding how pervasive and normalising this type of promotion can be. Feedback from these respondents also highlights “despite this legislation, the tobacco industry has continued to bypass smoke free advertising legislation internationally by utilising pop stars, gaming, YouTube to market to a younger audience”.

Theme 3: Some population groups find this advertising more appealing and attractive

Respondents (e.g. individuals, health organisations) note that some population groups including children and young people may be particularly vulnerable to this kind of marketing. These respondents suggest that the proposal would help to “reduce the visibility of associations between vaping and sports, fashion or music which tend to be particularly noticed by children and young people”.

Promotion to current adult smokers, to help cessation, is considered reasonable by these same respondents, but placement on unrelated items is felt to be unnecessary and may make the activity attractive to others. Individuals and health organisations feel that making brand-sharing an offence could help to prevent the practice from happening at all (e.g. if there were appropriate enforcement, prosecution, and fines).

“Brand-sharing is essentially advertising through the back door, manipulative and subliminal and allows messages to reach a widespread non-smoking audience including children and young people. There is evidence that tobacco brand sharing increases the likelihood of adolescents taking up smoking. We note that there is currently no unbranded NVP”.

Joint response from SDsPH, PHS, and SHPM

5.1.2 Respondents who do not support the proposal

Around one-fifth of all respondents who do not support the proposal to make brand-sharing an offence provide qualitative feedback. The feedback is mainly from individual respondents, followed by the vaping sector and tobacco industry. Many of these respondents restate similar points raised to earlier consultation questions, including some points raised by respondents above in Section 5.1.1.

Theme 1: Brand-sharing is not commonplace in the industry

The vaping sector’s view is that “brand-sharing is not commonplace in the industry, and they note the following points:

• There is support among these respondents for enforcement body resources to be targeted at breaches of current regulation, rather than the addition of new guidelines.
• The proposal is felt by these respondents to conflate smoking and vaping and undermines exposure to a significantly less harmful alternative to assist smokers stop smoking.
• The respondents suggest that the measures proposed would mean the regulatory framework for e-cigarettes would start to mirror that of traditional combustible tobacco products and could cause adult smokers to misunderstand the relative harm distinction between the different products.

Further, some individual respondents feel that brand-sharing extends beyond vaping products/ industry, and they should not be singled out.

Theme 2: Role of Trading Standards

Vaping sector respondents feel that “brand-sharing may take place among counterfeit products” – these respondents highlight the “essential need to crack down on the most egregious breaches of current regulation”.

They also suggest that further enforcement is required to ensure that “only safe and responsible e-cigarette products are available for sale, specifically inspection of the packaging and the disposable vaping devices as part of the notifications process”.

These respondents also suggest that Trading Standards in Scotland “must be adequately equipped to enforce current regulations, ahead of introducing further measures which will increase the burden, without tackling the perceived issues raised in the consultation”.

Theme 3: Additional regulations are felt to be disproportionate

The vaping sector and tobacco industry respondents feel that additional regulations are disproportionate. These respondents report that there is already legislation to deal with products which appeal to children and to stop tobacco products brand-sharing with other products such as vaping products.

Further, and as noted above, these respondents suggest resources should be “targeted at breaches of current regulation”, rather than the addition of “new guidelines which do not tackle an issue which is commonplace in industry or society”.

There is, however, some reference to its use for disposable vapes (e.g. individuals, vaping sector), and that this requires more effective regulation.

The vaping sector and tobacco industry feel that the focus should be on increasing education and awareness rather than on introducing more restrictions.

Theme 4: Sponsoring sports teams, shirts, and equipment

A few individual respondents feel that sponsoring sports teams, sports shirts, or sports equipment is not an issue or concern, and should continue to be allowed. These respondents note that this could be “valuable revenue to sports clubs”.

5.1.3 Further clarity on the proposal

Although framed in slightly different ways, NHS Lanarkshire Tobacco Control Management team, National Smoking Cessation Co-ordinators Group and NHS Orkney Public Health request further clarity from the Scottish Government on the proposal. More specifically, clarification “as to whether the legislation will allow for smoking cessation services who may wish to provide e-cigarettes in the future, as there is currently no non-branded product available”. Further, “legislation would need to make clear that the offence is for commercial/business brand-sharing”.