LEGAL ACTION TOOLKIT Where There’s Smoke (www.wheretheressmoke.social) STOP SECRET ADVERTISING ON SOCIAL MEDIA

Despite decades of promises that they do not target youth, tobacco giants Philip Morris International, British American Tobacco, Japan Tobacco International and Imperial Brands are deceptively using social media channels like Facebook, Instagram and Twitter – channels with the potential to reach users as young as 13 years old - to promote tobacco brands and to an unlimited global audience of young people.

The Campaign for Tobacco-Free Kids has collected evidence from more than 40 countries that reveals how the world’s four largest publicly-traded tobacco companies are secretly advertising on social media platforms by paying or incentivizing social media ‘influencers’ – young people who have a significant online following – to share images of tobacco brands or smoking to billions of social media users around the world. Tobacco companies also encourage attendees of tobacco brand-sponsored parties to post specific campaign hashtags to their social media accounts to reach the widest audience possible with images of cool young people having fun while smoking their brands.

Left unchecked, this global marketing tactic poses a significant threat to renormalizing tobacco use around the world. An advocacy campaign launched against the tobacco companies’ social media marketing in June 2018 by the Campaign for Tobacco-Free Kids details how the companies are doing this and what advocates can do about it – Where There’s Smoke (www.wheretheressmoke.social).

One action lawyers and advocates can take is to file complaints or to take legal action to ensure that Big Tobacco can no longer target youth—or anyone else— with deadly internet advertising on social media purposefully designed to be under the radar of regulators and the public.

TAKE ACTION

1. File and publicize a complaint with the appropriate body/bodies in your country.

• Enforcement agency: A complaint filed with a relevant governmental or regulatory body specifies how the may be breaking the law with its marketing campaign, why it is important for that law/s to be enforced, and a demand that legally binding action is taken to force these tobacco companies to stop advertising online through social media. • Industry self-regulatory body: Some countries lack strong laws on tobacco advertising, promotion, and sponsorship. In these jurisdictions, there may be a voluntary code, which the tobacco companies “promise” to abide by. Bringing a complaint before such a voluntary body may not provide a satisfying legal resolution; however, you may be able to use the non-action by the voluntary body as evidence to support a future campaign for legislation prohibiting all forms of tobacco advertising, promotion, and sponsorship – including all forms of internet tobacco advertising and promotion. • Human rights monitoring body: Depending on your country, you may also file a complaint with a human rights monitoring body or other international organ, such as: The Committee on the Rights of the Child; the Committee on Economic, Social and Cultural Rights; or the National Contact Points under the OECD Guidelines for Multinational Enterprises.

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Steps to take: A. Confirm that social media tobacco influencer marketing is happening in your country. Examples of hundreds of social media posts are available at Where There’s Smoke (www.wheretheressmoke.social) where you can search for images from your country. The Campaign for Tobacco-Free Kids can assist you in identifying tobacco-related campaign hashtags used in social media advertising.

B. Assess whether the elements of the campaign running in your country violate relevant laws. Relevant laws could include laws, and possibly general advertising laws, child protection, consumer protection laws, and others. See Appendix I below for assistance with this step.

C. Identify the relevant government or non-government body responsible for enforcement of tobacco control laws and/or other laws that have been violated.

D. Draft and submit a formal complaint to the enforcement body. Consider developing a complaint form that can be used as a template by multiple people for simultaneous filings. A complaint might include the following information:

• A description and capture (e.g., screen grab) of the social media images of the campaign that seem to violate the law, along with when and what social media channel they were taken from.

• Identify the tobacco company and if possible the marketing agency that appear to be directing the campaign and the address/contact information of the companies’ offices in that country.

• Reference to the relevant legal provisions and a brief description of how you believe the social media influencer marketing campaigns running in your country violate the cited provisions.

• A demand that appropriate enforcement action be taken and that you be notified of the action taken.

• Special care should be taken in directing the complaint solely against the tobacco companies and their marketing agencies and not at individual social media influencers. Young social media influencers are unlikely to have ownership interest in these companies and ultimately it is the tobacco company advertisers who ought to be held accountable for their unlawful conduct.

E. Consider copying your local members of Parliament, and ask for action, if appropriate.

F. Engage in a communications strategy to ensure wide public awareness and support for your complaint. Contact Caroline Renzulli at the Campaign for Tobacco-Free Kids for assistance at [email protected].

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2. Take legal action.

Depending on what is legally permissible in your country, legal action may be an available remedy if civil society organizations or individuals have the legal authority to initiate litigation. Action could include: 1) a lawsuit to compel the government to take enforcement action if it fails or refuses to enforce alledged violations and/or 2) a legal action against global parent and subsidiary tobacco companies directly for violating the law. It will be necessary that a qualified local lawyer has determined that a violation of the law does, in fact, arguably exist, and that civil society has the legal authority to bring a lawsuit against the government to compel it to bring enforcement action and/or against the companies to compel them to stop running the alledged unlawful marketing campaigns.

3. Contact the ILC for assistance.

The Campaign for Tobacco-Free Kids’ International Legal Consortium (ILC) is available to discuss the situation in your country with you. In addition, the ILC’s tobacco control legislation database provides analyses of many countries’ tobacco control and related laws. These may be accessed at https://www.tobaccocontrollaws.org. Contact [email protected] for assistance.

4. Let us know what you are doing.

Advocates from around the world are taking on Big Tobacco’s secret social marketing campaigns. Knowing what you are doing in your country can assist in sharing best practices. Send us copies of your complaints, tobacco companies’ responses, judicial or administrative orders, and any other relevant information. Please email any relevant information to [email protected].

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APPENDIX I

ASSESSING LEGAL ACTIONS UNDER TOBACCO CONTROL AND OTHER LAWS

Generally, the tobacco companies carry out their online marketing campaigns in three ways:

1) directly entering into a material relationship with popular young adult influencers to post tobacco brand images and campaign hashtags related to their tobacco brands;

2) creating parties and events with tobacco brand sponsorship and promotion, often in conjunction with distribution of (free or paid-for) tobacco products, and encouraging or incentivizing event attendees to post to their social media accounts specific hashtags and images as instructed at the party or event; and

3) engaging in brand sponsored contests and encouraging participants to post information, including specific hashtags, about their participation to their social media accounts.

TOBACCO CONTROL LAWS

Taken together, the chart below provides a quick reference to assist with determining if the different elements of social media influencer marketing campaigns outlined above violate applicable legal provisions of a tobacco control measure in your country or city. Consulting with a local lawyer is necessary to make a legal determination, as this determination will depend on a number of factors. This chart is merely a guide and is not intended to provide legal advice.

Elements of social Example post below showing campaign Relevant legal provisions media influencer elements (see images on pages 7-12) suggesting a violation include, but marketing visible on are not necessarily limited to: social media posts Images of smoking Images 3,4,5,9 • Complete ban on all forms of Images of individual Images 2,6,7,8 tobacco advertising/promotion cigarettes or a pack of cigarette with branding • Complete ban on all forms of Images of tobacco Images 1,2,6,7,8,9,10,11 sponsorship product brand logos, trademarks, names, or • Ban on tobacco any other brand-related advertising/promotion through imagery electronic media Use of hashtags such as Images 1,2,3,4,5,6,7,8,9,10,11,12 #smoke, #company • Ban or restrictions on internet name, #tobacco product communications regarding brand name, #tobacco tobacco marketing slogans Images of tobacco Images 1,2,6,7,8,10,11 • Ban on lifestyle advertising for product brands without tobacco

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clearly displayed health • Ban on tobacco warnings or other advertising/promotion in required markings channels not restricted to adults- Posts with aspirational Virtually all the posts included here and on only messages or imagery www.wheretheressmoke.social show images likely to be attractive to that could be attractive to youth. Aspirational • Ban on games, contests, and/or youth images and traits of young adults – such as prizes related to tobacco attractiveness, maturity, affluence and popluatorty – are influencial to youthful • Ban on direct or person-to- audiences. person communication for Failure to disclose paid tobacco advertising with the use Images 6, 7 of hashtags like #Ad or #Sponsored Note: Though we do not have direct evidence that these two influencers were paid, their profile of having a high number of followers and their use of BAT’s global social marketing campaign slogan for Lucky Strike - #Lus - strongly suggests that they are paid influencers.

GENERAL ADVERTISING AND CONSUMER PROTECTION LAWS

The tobacco companies’ social influencer marketing campaigns might also breach consumer protection laws such as those prohibiting deceptive or misleading advertising practices and laws that prevent businesses from engaging in unconscionable conduct or false, misleading, and deceptive conduct.

Deceptive or Misleading Advertising

The use of paid social media influencers to market a product or the practice of incentivizing or encouraging people attending sponsored off-line events to post to their social media accounts without ensuring there is a disclosure that the content is paid for or incentivized advertising could be considered deceptive advertising under some countries’ laws.

Although proving an influencer was paid or incentivized is likely not possible without an admission by the influencer/social media poster through the use of #Ad in a post, a certain profile of an influencer or an account posting the content can be established to strongly suggest the tobacco companies’ have a financial or material relationship to the influencer including:

• Individuals with a high number of followers. A high profile influencer can be paid USD $250 per post on social media (0-50,000 followers) up to USD $15,000+ per post (500,000-1,000,000 followers). i Tobacco companies and their marketing firms are able to view the profiles of influencers that they select for social media marketing campaigns. • Individuals that have promoted other non-tobacco brands on social media (clothes, food, etc.). In general, tobacco companies appear to be using popular lifestyle, fashion and music influencers on social media to also promote tobacco products.

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• Specific hashtags are used to promote tobacco products. Influencers and tobacco party attendees posting to social media are instructed on what specific hashtags to use. For example, to promote its cigarette brand Lucky Strike, British American Tobacco uses the hashtags #LikeUs and #Lus and variations of that term on social media posts. Common hashtags used by PMI to promote its iQOS brand include #ThisChangesEverything and #Iqos.

Further, businesses can sometimes engage in false, misleading, and deceptive conduct by silence; for example, by failing to disclose important facts about a product. Arguably, these social media tobacco campaigns comprise elements of false, misleading, and deceptive conduct. They convey only positive information about the characteristics of tobacco products without informing potential customers of a very important fact about them: that using them will possibly kill them.

Protection of Youth

Rules against misleading advertising and unconscionable, false, misleading, and deceptive conduct often focus on the protection of vulnerable consumers – such as youth. The tobacco companies’ advertising campaigns clearly can reach youth as young as 13 years of age given the companies are advertising on electronic media that is not age-restricted and kids as young as 13 years can set up accounts on Facebook, Instagram, and Twitter.

Further, in addition to using tobacco brand specific hashtags, social media posts more often than not use common words as hashtags in the post (e.g., #Cool, #Hip, #Girls, #Fun, etc.) so that anyone searching for these terms could see the content.

Arguably, the tobacco companies’ use of advertising on a medium that cannot be restricted to adult-only viewers or to smokers only – despite promises made by these companies that they do not market to youth or nonsmokers -- comprises unconscionable conduct.

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EXAMPLE SOCIAL MEDIA POSTS PROMOTING CIGARETTE BRANDS

Image 1. Instagram post promoting Philip Morris International’s Marlboro cigarettes originating in Indonesia showing Marlboro branding and using hashtags associated with Marlboro advertising including #idecideto, #evolve and #movers. @dj_gween has 75K followers on Instagram.

Image 2. Instagram post of Philip Morris International’s Ice Ball cigarettes in Uruguay showing branded cigarettes and promoting time of use of product.

The post features #Cigarettes and #NightHunters. The NightHunters campaign used paid social media influencers to post about Iceball on social media.

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Image 3. Instagram post from Russia showing smoking and using Imperial Brands’ cigarette brand hashtag #Davidoff. #Dselection is a campaign that post social media content about Davidoff cigarettes. @ingerbkat has 23.4K followers on Instagram.

Image 4. Instagram post showing cigarette smoking and tagging a British American Tobacco social media marketing campaign originating in Brazil, #aAheadBR. AheadBR is a campaign that uses paid social influencers to post content about Kent cigarettes. @bruhuli has 78K followers on Instagram.

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Image 5. Instagram post showing cigarette smoking and tagging a British American Tobacco social media marketing campaign originating in Brazil, #AheadBR. @luannaexner has 49.7K followers on Instagram.

Image 6. Instagram post showing a pack of Lucky Strike cigarettes and using British American Tobacco social media marketing campaign hashtag #Lus originating in Italy and using #smoke along with other common words like #Dinner, #Love, #Fiesta, #Time – all easily searchable by any Instagram user. @francylukasik has 79K followers on Instagram.

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Image 7. Instagram post showing pack of Lucky Strike cigarettes and using British American Tobacco social media marketing campaign hashtag #Lus originating in Italy and using common social media hashtag #Tbt (throw back thursday). @giottocalendoli has 135K followers on Instagram.

Image 8. Instagram post from a British American Tobacco party promoting Lucky Strike cigarettes in Chile featuring a lighted display case of cigarette packs and branding. The post uses British American Tobacco’s global campaign hashtag, Like US (in image) and #LikeUsChile as well as using a brand name as a hashtag - #LuckyStrike.

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Image 9. Instagram post from party attendees in Kazakhstan promoting Japan Tobacco International’s Winston brand cigarettes using JTI’s marketing slogan #StayTrueStayFree and the brand-related party campaign #Freedommusickz. One of the attendes in the photo is smoking a cigarette.

Image 10. Instagram post from party attendees in Kazakhstan promoting Japan Tobacco International’s Winston brand cigarettes using JTI’s marketing slogan #StayTrueStayFree and the brand-related party campaign #Freedommusickz. The Winston Brand is clearly visible.

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Image 11. Facebook post originating from Indonesia promoting Philip Morris International’s Marlboro cigarette brand using PMI’s global marketing campaign slogan “You Decide” (#Guedecide) and Marlboro’s logo. @lalakarmela has 147K followers on Instagram.

Image 12. Instagram posts from a famous performer in Egypt promoting Philip Morris International’s Marlboro cigarette brand using PMI’s marketing campaign slogan #RedMoveNow.@shoukrylive is a hip hop performer, songwriter, and gamer with 23.3K followers on Instagram.

i Report prepared for the Campaign for Tobacco-Free Kids by Grassriots. IQOS Social Listening Report. March 2018 (citing Industry pricing chart for purchasing a product-post from an Instagram Influencer from The Influence Agency.)

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