Vaping Vs Tobacco: Marketing Laws And Exemptions

Marketing restrictions on tobacco products are important to reduce tobacco consumption and limit messaging that may persuade people to start or continue using tobacco or e-cigarettes. However, tobacco marketing laws do not apply to vaping because vaping is a relatively new phenomenon.

In the US, the Family Smoking Prevention and Tobacco Control Act of 2009 gave the FDA the authority to regulate tobacco products, but vaping products were not included in this legislation. As a result, vaping products were not subject to the same marketing restrictions as tobacco products.

In Australia, the Public Health (Tobacco and Other Products) Act 2023 bans any form of communication that directly or indirectly promotes smoking or vaping. This includes advertising in writing, images, audio or video, as well as sponsorship of events or activities that promote smoking or vaping. However, there are limited exceptions to these offences, such as advertising at the point of sale on the internet.

The lack of comprehensive marketing restrictions on vaping has allowed the vaping industry to promote their products through various channels, including social media and celebrity endorsements. This has contributed to the rise in vaping, especially among youth and young adults.

Vaping and tobacco advertising restrictions differ in their application to online point-of-sale websites

Tobacco advertising restrictions

Tobacco advertising restrictions limit promotion, placement, flavouring, or pricing of tobacco products. They can restrict point-of-sale (POS) advertising, signs, and displays, require minimum package sizes, and mandate written warnings for tobacco products. Regulations can also prohibit sales in health-oriented facilities such as pharmacies, prohibit daytime advertising, limit the number, size, or location of ads posted by businesses, and prohibit print ads in child-oriented newspapers and magazines.

Tobacco advertising restrictions are in place to reduce tobacco consumption, especially among youth. Exposure to tobacco advertising is strongly associated with tobacco use, and removing tobacco power wall advertising displays from checkout lines has been shown to decrease adolescents' likelihood of smoking.

Vaping advertising restrictions

The advertising of vaping goods (including e-cigarettes) is prohibited under the Therapeutic Goods Act 1989 (as amended by the Therapeutic Goods and Other Legislation (Vaping Reforms) Act 2024). Any advertisement for e-cigarettes must comply with the Therapeutic Goods Act, the Public Health (Tobacco and Other Products) Act 2023, and any other applicable Commonwealth, state or territory law.

The Public Health (Tobacco and Other Products) Act 2023 bans any form of communication or activity that directly or indirectly promotes smoking or vaping, or the use of tobacco products. This includes signs or symbols, such as trademarks, and applies to the internet or other electronic media (such as mobile phones), films, videos or radio programs, and products such as t-shirts.

Differences in application to online point-of-sale websites

Tobacco advertising at retail points of sale is covered by state and territory advertising laws. Online point-of-sale advertising of tobacco products is allowed under the Public Health (Tobacco and Other Products) Act 2023, with some restrictions. For example, advertisements must not be targeted at minors, and they must be located outside Australia and not be capable of being accessed by a person in Australia.

In contrast, the advertising of vaping goods is prohibited under the Therapeutic Goods Act, with limited exceptions.

Vaping and tobacco advertising restrictions differ in their application to the use of trademarks

Tobacco marketing laws do not apply to vaping because vaping is a relatively new phenomenon that has not been fully regulated yet. Vaping and tobacco advertising restrictions differ in their application to the use of trademarks. In the case of tobacco, trademarks are highly regulated and restricted. For example, in the United States, the use of brand names, logos, symbols, and other trademarks is prohibited in the marketing and distribution of tobacco products. This includes the use of trademarks on items such as clothing, accessories, and promotional merchandise. On the other hand, vaping trademarks are not as heavily regulated, and there are no specific restrictions on the use of trademarks in vaping advertising. This is because vaping is often seen as a less harmful alternative to smoking and is sometimes even promoted as a smoking cessation aid. However, it is important to note that the regulations around vaping trademarks vary by country and region.

The difference in the regulation of trademarks between vaping and tobacco products can be attributed to the history and perception of these products. Tobacco has a long history of harmful effects on public health, while vaping is a more recent phenomenon. Tobacco companies have been heavily criticized and faced numerous lawsuits for their role in the tobacco epidemic. As a result, strict regulations have been put in place to restrict the use of tobacco trademarks in advertising. In contrast, vaping is often seen as a less harmful alternative to smoking, and in some cases, it is even promoted as a smoking cessation aid. This perception has influenced the regulatory approach to vaping trademarks, which has been more lenient compared to tobacco.

The application of trademarks in vaping and tobacco advertising also differs due to the varying levels of scientific understanding and research on the health effects of these products. Tobacco has been extensively studied, and the harmful effects of smoking are well-established. On the other hand, vaping is a newer industry, and the long-term health effects of vaping are still being studied. As a result, the regulatory approach to vaping trademarks may evolve as more research becomes available.

It is important to note that the use of trademarks in vaping advertising is not completely unrestricted. In some countries, such as Australia, there are laws in place that prohibit the advertising of vaping products, including the use of trademarks. These laws aim to reduce the promotion of vaping and limit messaging that may encourage people to start or continue vaping. However, the specific regulations around vaping trademarks vary by country and region, and it is important to refer to the local laws and guidelines for specific details.

The difference in the application of trademarks in vaping and tobacco advertising restrictions highlights the evolving nature of regulations in the vaping industry. As the understanding of the health effects of vaping continues to develop, it is likely that regulations around the use of trademarks in vaping advertising will also evolve.

Vaping and tobacco advertising restrictions differ in their application to the use of promotional discounts

Vaping and Tobacco Advertising Restrictions

Promotional Discounts

Tobacco companies are prohibited from offering promotional discounts in many countries. This is because discounts make tobacco products more affordable and can encourage consumption. Vaping companies, on the other hand, are not subject to the same restrictions and often use discounts and coupons to promote their products. This is especially appealing to young people, who are more price-sensitive.

Impact on Youth

The use of promotional discounts by vaping companies has been linked to youth uptake of vaping products. Offering discounted or free samples can make it easier for young people to try vaping and potentially develop an addiction. This is a significant concern, as nicotine is highly addictive and can have harmful effects on brain development.

Policy Implications

To address the impact of promotional discounts on youth vaping, policymakers can consider implementing restrictions on the use of coupons and discounts for vaping products. This could include banning the distribution of free or discounted samples and limiting the use of price promotions. Additionally, increasing taxes on vaping products can help to offset the impact of discounts and make these products less affordable for young people.

Vaping and tobacco advertising restrictions differ in their application to the use of coupons

Vaping and Tobacco Advertising Restrictions and Coupon Use

On the other hand, vaping products that contain nicotine and are not licensed as medicines are prohibited from being advertised in various media and cannot be targeted at children. This includes social media platforms such as Instagram, Facebook, and TikTok. While retailers and manufacturers of vaping products can still communicate with a legitimate audience, they must be careful not to target underage individuals through their content or placement of advertisements. The restrictions on vaping advertisements aim to protect youth from the harmful effects of vaping products and nicotine addiction.

The difference in the application of coupon use between vaping and tobacco advertising restrictions lies in the regulatory approach taken by governments. While the federal government in the United States has set some restrictions on tobacco advertising, it has not implemented a complete ban, allowing for the continued use of coupons and discounts. In contrast, the focus on protecting youth from vaping has led to more stringent restrictions on advertising, including the prohibition of certain types of media and the targeting of underage individuals. These differing approaches result in varying levels of flexibility when it comes to coupon use for promotional purposes.

Vaping and tobacco advertising restrictions differ in their application to the use of product displays

Tobacco advertising restrictions have been implemented by various countries and local governments to curb tobacco consumption, particularly among youth. These restrictions limit the promotion, placement, flavouring, or pricing of tobacco products. They can also restrict point-of-sale (POS) advertising, signs, and displays, mandate minimum package sizes, and require written warnings on tobacco products.

In the United States, federal law prohibits tobacco advertising through television and restricts magazine and billboard advertising, but does not prohibit advertisements in stores. Additionally, tobacco companies are banned from sponsoring sports or entertainment events or distributing branded promotional items. However, tobacco marketing on the internet remains unregulated and is increasing, especially through social media and user-generated videos.

Vaping and e-cigarette advertisements, on the other hand, are subject to different regulations. In the United States, the Family Smoking Prevention and Tobacco Control Act (FSPTCA) of 2009 authorised the Food and Drug Administration (FDA) to regulate the marketing, distribution, and sale of tobacco products, including e-cigarettes. The FSPTCA prohibited non-tobacco brand gifts with the purchase of tobacco products and tobacco-brand sponsorship of events. Weaker provisions allow self-service displays and free samples of tobacco products in adult-only facilities.

The FSPTCA also requires health warning statements on tobacco product packages and advertisements. These warnings must appear in the upper portion of the advertisement, occupy at least 20% of the area, and be printed in a legible font and colour contrast. Retailers are responsible for ensuring that advertisements displayed in their stores contain the required health warnings.

While tobacco advertising restrictions have been effective in reducing tobacco consumption, the point of sale remains the least regulated channel. This is an area where vaping and tobacco advertising restrictions differ. Vaping products, including e-cigarettes, are often displayed behind checkout counters at convenience stores, gas stations, grocery stores, and pharmacies. These product displays are a form of advertising that is not typically restricted by tobacco advertising laws.

To address this gap in tobacco advertising restrictions, some jurisdictions have implemented measures such as banning the sale of tobacco products near schools or in certain retail environments like pharmacies. Additionally, regulations on the time, place, and manner of tobacco advertising have been enacted, allowing for more uniform regulation of tobacco products, including e-cigarettes, in some states.

The World Health Organisation Framework Convention on Tobacco Control recommends a comprehensive ban on tobacco advertising, promotion, and sponsorship. This includes restricting product displays at the point of sale, as these displays are functionally equivalent to advertising and influence smoking behaviour.

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