Over the past couple of weeks, BAT (owner of Nicoventures and Imperial Tobacco Canada) has launched new promotions in Canada for its vaping products. This campaign is part of a global re-branding initiative the company shared with investors in March.
This campaign can be seen as a test run of the federal government’s plans for stricter rules on vaping promotions (announced in December). While seemingly following these new rules, BAT has nonethless been able to make vaping look fun, easy, not dangerous – and eminently ‘tryable’.
This post looks at how this campaign exposes some of the challenges in our current constraints on nicotine marketing.
1: The companies have plenty of creative space to make their brands look sexy and cool.
The federal law on vaping and tobacco advertising takes a different approach with respect to vaping and tobacco advertising restrictions. For tobacco, all promotions are banned except those which are specifically permitted. For vaping, all promotions are allowed except those which are specifically banned.
This law prohibits “lifestyle advertising” for vaping products (s. 30.2), and defines a lifestyle ad as one which “associates a product with, or evokes a positive or negative emotion about or image of, a way of life such as one that includes glamour, recreation, excitement, vitality, risk or daring.” The narrowness of the definition is rooted in a 2007 ruling of the Supreme Court.
Despite this prohibition, last year the social media pages run by BAT in Canada were laden with lifestyle imagery, like those from 2018 shown below. This drew complaints (including our own) as well as enforcement action by Health Canada.
Once Health Canada told them to remove the lifestyle influencer ads, BAT replaced them with more static images linked to product attributes like flavours and design. As the current ads from 2019-2020 shown below demonstrate, the company continues to make vaping products look exciting and glamourous — but not in a way that is considered by enforcement officials to go against federal law.
Vype-Vuse Canada Instagram Feed 2018
Vype-Vuse Canada Instagram Feed 2019-2020
Vype-Vuse video promotions (click to play)
2: Domestic regulation is ineffective when global social media is exempted
Government authorities have been clamping down on influencers and other social media promotions, but the industry has shown little respect for national-level regulation.
The United Kingdom advertising authority, for example, told BAT last December to stop using Instagram in ways that general audiences could access them. Health Canada sent Imperial Tobacco warning letters regarding the content on its social media accounts.
BAT’s response? To set up Instagram accounts in other countries and to provide links to these sites in its domestic posts.
The most recent Instagram and Facebook posts of Vype Canada are shown below. These are informational ads — but the hashtags within them immediately lead viewers to promotions that provide, let us say, a very different type of promotion. Note the first reference on both pages to #vusechargebeyond (which we highlighted in yellow). This term was trademarked by BAT in Canada last October.
Through its global presence, BAT manages dozens of Instagram, Facebook, Twitter, and Youtube accounts. Some of these are linked to countries (e.g. , Vypeitalia), others are stateless (e.g. vype_worldwide). The national accounts become gateways to global promotions which flaut domestic regulations.
Canadian law is poorly structured to take action against these promotions. Even though the federal law was drafted in 2017, it makes no provision for social media. The decision of previous decades to take no action against imported magazines and broadcasts has been applied to socoial media. (TVPA, s. 31). Individuals or companies based in Canada are not allowed to use that exemption — but as long as the campaigns are run by multinational headquarters, these promotions benefit from this statutory carve-out.
Last year Instagram and Facebook’s pledged to stop paid influencers promoting vaping products. BAT seems to have found a way to #chargebeyond that barrier. Imperial Tobacco’s social media pages direct viewers to trans-border advertising. Govypeca Instagram refers viewers to #vusechargebeyond:
3: Product and packaging are used as advertising platforms
This winter plain and standardized packaging became a requirement for tobacco products sold in Canada, as plain packaging had been required for cannabis products since 2018. Soon, cigarettes will also be required to have a standardized appearance.
The federal labelling requirements for Vaping products were finalized in December and come into force on July 1. These new rules require companies to increases the size of the warnings and standardize the appearance of the nicotine concentration, as BAT has done in its new Vype-Vuse packages. They do not, however, prevent the company from using other design elements to dilute the impact of these new requirements. Their new packages, shown below, demonstrate how they have chosen to do this.
The devices themselves are increasingly decorated and image-laden, as shown below. Again, the rationale for not allowing harmful products to be enticingly designed has not been transferred to vaping devices.
(L) – Vype capsule package, Canada 2019
(M) – Vype-vuse capsule package, Canada 2020
(R) – Vype-Vuse decorate ‘skins’ – May 2020
4: Candy-coated addiction can be advertised, as long as it isn’t called candy
Canada’s federal law prohibits vaping products from being promoted in ways that make consumers think that they taste like candy, soft drinks, cannabis or deserts. This is why you won’t find flavours like Tiramisu sold in Canada, although it is sold by BAT in other countries.
The law does not prevent vaping products from tasting like confectionery, as long as it is not promoted in that way. Nor are companies prohbited from using flavour descriptions that make the product seem as attractive as candy or deserts: promoting Creme-brulée flavoured vape is forbidden but promoting “Smooth vanilla with soft notes of cinammon” is okay.
The use of evocative flavour descritions was recently reviewed by the U.K. advertising authority, which found that Vype flavour descriptions “went further than simple factual claims and constituted descriptive, promotional language”. It ordered BAT to tone down its flavour descriptions.
BAT markets Vype-Vuse flavours in Canada with descriptive, promotional language:
“explosion alive with almond notes”
“zesty, lively combination”
“deepy yet light blend of…”
“collision of cucumber freshness with an element of tanginess”
“Expertly crafted refreshing mint”
“soft notes of”
5: E-stores are excessively promotional
In 2002, Saskatchewan became the first Canadian province to ban the display of tobacco products, a measure which has been extended to the display of vaping products in all but one province (Alberta). Specialty vape shops are generally exempt from these requirements, as long as young people are not permitted in the store.
Increasingly, the preferred route to market for big nicotine companies are their own e-commerce sites and their own retail outlets – as BAT has acknowledged to its investors. (E-commerce is not allowed in Quebec, and the the companies do not accept orders from Nova Scotia, where flavours are banned).
These sites work on the honour system with respect to youth access, requesting visitors to self-identify their age. Although the federal government proposes to require meaningful age-gating, this is not currently in place.
In Canada, these sites are highly designed, rich in colour, movement and sound. The products are displayed in a showroom context — with special effects and dramatic backdrops. This is in contrast to a few other countries — notably Belgium — where web-sites are staid and products cannot be shown. The contrast between BAT’s e-commerce websites in Canada and Belgium is shown below.
(L)- Canada govype.ca (vuse.com) – May 4, 2020
(R) – Belgium – govype.com/be/be – May 4, 2020