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Think BR: Has the last puff of smoke been extinguished?

The tobacco industry has a noticeable online presence, particularly on social networks, but who will police this when the ASA's remit is extended to all online promotional messages next year, asks Marina Palomba, Reed Smith.

Marina Palomba: a partner at Reed Smith

Marina Palomba: a partner at Reed Smith

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Although tobacco advertising has been banned in most countries in the world, recent evidence suggests that tobacco companies have turned to social media to promote their brands.

In the UK this raises an interesting legal and regulatory issue. The internet has long been accused of being a medium through which brands can avoid advertising regulation, and to some extent that has been true.

The CAP Code (the code that governs all advertising in the UK in non-broadcast media, including paid for space on the internet) does not currently apply to the internet as a whole; although this will change in March 2011 when the CAP Code will be extended to cover nearly all promotional messages.

For the tobacco industry, however, the CAP code extension should be partly irrelevant, because tobacco is banned from being advertised under the Tobacco Advertising and Promotion Act 2002. This Act prohibits the advertising and promotion of tobacco products in the UK, including in sponsorship and on the internet (since September 2006).

So why do heritage advertisements and other quasi-promotional messages continue to appear on the internet?

The tobacco companies claim they are not to blame and this may be partly true. Uploading old and clever TV commercials from bygone days onto YouTube and Facebook is something anyone can do, in any jurisdiction, and the actions of individuals are something over which the tobacco companies have no control.

There are, for example, over 500 Marlboro themed pages on Facebook, created by individual users simply because they like the brand. This open-source marketing has the potential to exploit advertising ban loopholes and stretch legal definitions in order to generate positive word of mouth publicity for tobacco products.

If, on the other hand, tobacco company employees are being encouraged to post such materials on social networks, then this constitutes a serious breach of the law by the tobacco companies in most major countries in the world. The problem, however, is that the internet is very difficult to police.

This is precisely the concern about the proposed extension of remit by the ASA to all promotional messages online. Firstly, what is a promotional message as opposed to genuine editorial and, second, how does the ASA enforce its adjudications?

Tobacco promotions on social networking sites are a prime example of how governments and regulators have failed to act to date. The regulation of content on social media sites in particular will continue to be a grey area, as it will often be unclear how materials were uploaded and by whom. How social media sites deal with consumer complaints about tobacco advertising is still unknown.

The CAP Copy advisors have stated that, because tobacco advertising is prohibited under Rule 21, policing of it online will not be within their remit. Does the burden to enforce therefore fall to Trading Standards

RJ Reynolds engaged with thousands of consumers through its website to design a new blend of Camel cigarettes. Will the ASA investigate a complaint about this kind of activity from next year? It seems unlikely. The big question is where this leaves regulation of the internet generally if consumers cannot get redress from regulators. Is their best and only option to complain, ad by ad, to the service providers or social media networks?

Marina Palomba is a partner and head of advertising at law firm Reed Smith

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