Study design

This is a descriptive analysis of the data (quantitative and qualitative) obtained through expert consultations. The online questionnaire contained two sections: Section 1, with 25 questions on recent TAPS regulation changes at the national level, current TAPS problems (domestic and cross-border), the main reasons behind TAPS problems, and suggestions to improve current regulation on TAPS; and Section 2 on identified best practices on TAPS within the experts’ country.

Experts were retrieved from the list of stakeholders identified in the JATC2 and other sources, such as networks and associations devoted to tobacco control research and advocacy in Europe. The criterion for selecting experts was their involvement in any area of tobacco and/or nicotine control.

Variables

Questions about changes in TAPS regulation over the last three years, current problems, and measures taken to overcome TAPS issues were either free-response or closed-ended (e.g. multiple choice, Likert scale response options).

The current problems were rated according to the perceived importance (high, moderate, low, none, don’t know) by the respondent for each one of the following seven types of tobacco-related products: tobacco products for smoking (cigarettes, roll-your-own, cigars, cigarillos, pipes, waterpipes); heated tobacco products sticks; heated tobacco products devices; tobacco for oral use, snuffing or chewing; e-cigarette liquids; e-cigarette devices; and new products containing nicotine such as nicotine pouches.

The main reasons behind TAPS problems for each of the above-mentioned tobacco-related products were classified into six multiple-choice options: 1) gaps in current regulation, 2) problems with the implementation of regulation, 3) problems in monitoring and enforcement, 4) low compliance with regulation, 5) new approaches by the industry, and 6) don’t know.

The respondents were asked to rate the perceived importance of the predefined list of seven main gaps in TAPS regulation: gaps in definitions of rules and regulations, gaps regarding events with a cross-border dimension, exclusion of devices from TAPS bans, gaps concerning novel products, the possibility of cross-border internet sales, gaps in internet advertising, and gaps in social media.

Additionally, a list of eight suggestions to improve current TAPS regulation was asked to be rated: 1) Provisions on TAPS in EU regulation covering all emerging products, including heated tobacco products and their devices; 2) Social media advertising more clearly included and covered by EU regulation; 3) A broader definition of advertising, which includes the behavior of smoking (to prevent visuals of people smoking in social media posts, articles, or apps); 4) TAPS bans accompanied by an efficient enforcement mechanism; 5) EU-level online compliance tool; 6) Mandatory reporting of tobacco industry promotional expenditures; 7) Greater cooperation between MS to improve the enforcement system (including the exchange of best practices, discussion on challenges faced, and steps taken to overcome them); and 8) Collaboration between MS and other relevant stakeholders (for example, civil society organizations, global initiatives, citizens and audio-visual services regulators).

To explore current problems the questionnaire related them within a list of 24 different TAPS areas grouped into six TAPS themes in line with the 2021 EU report¹⁵ (Supplementary file Table 1). We performed content analysis by categorizing the word terms and meanings of the responses of experts addressing gaps and proposing solutions to improve TAPS regulation to match the above grouping of six TAPS themes.

Extent and reasons behind TAPS problems by type of tobacco or nicotine product

There were 20 out of 38 (53%) respondents who referred to the extent of current TAPS problems. Those rated as high extent were mainly related to e-cigarette devices (10 out of 20; 50%) and new products containing nicotine, such as nicotine pouches (9 out of 20; 45%). TAPS problems identified as being of moderate extent were mainly related to e-cigarette liquids and devices (Table 1).

Among the 24 TAPS areas rated by perceived extent of the TAPS problem, the most frequently rated as high or moderate extent were non-retailer websites (e.g. search engines, news services), social media, app stores (8 out of 38; 21%); national or local TV adverts (7 out of 38; 18%) and corporate social responsibility (5 out of 38; 13%) (Supplementary file Table 3).

The question regarding the reasons behind TAPS problems was answered only by those who rated the problems as high or moderate in the previous question. The most frequently mentioned reasons behind TAPS problems, considering the type of tobacco and nicotine product, were: the emergence of new industry approaches (43 mentions); gaps in existing regulations (42 mentions); difficulties in monitoring and enforcement (39 mentions); low compliance rates (32 mentions); and challenges with regulatory implementation (22 mentions) (Table 1).

Gaps in the current TAPS regulation

Among the list of seven predefined gaps in the current TAPS regulation, the 38 experts most frequently identified the following as high or moderate importance: ‘Gaps on social media’ and ‘Gaps on internet advertisements’ (35 out of 38; 92%); ‘The possibility of cross-border internet sales’ and ‘Gaps concerning novel products’ (28 out of 38; 74%); ‘Exclusion of devices from TAPS bans’ (23 out of 38; 60%); ‘Gaps regarding events with cross-border dimension’ and ‘Gaps in definitions of rules and regulations’ (17 out of 30; 45%) (Table 2).

More specifically, in open responses, the experts highlighted the following:

Proposed solutions to address the gaps in the current TAPS regulation

Among the list of eight suggestions in the questionnaire to improve current TAPS regulation, the 38 experts most frequently rated the following three as being of high or moderate importance: ‘Social media advertising to be included and more clearly covered by EU regulation’ (37 out of 38; 97%); ‘Greater cooperation between Member States to improve the enforcement system (including exchange of best practices, discussion on challenges faced and steps taken to overcome them)’ (35 out of 38; 92%); ‘A broader definition of advertising, which includes the behavior of smoking (to prevent visuals of people smoking in social media posts, articles, or apps)’ (34 out of 38; 89%) (Table 2).

Within open responses, national experts proposed the following solutions for current gaps in TAPS regulation:

Comprehensive ban, harmonized to all EU countries

This should apply to all forms of communication, action and contribution, emerging marketing channels, existing and new tobacco and nicotine products, devices and accessories for use, product imitations and all individuals and entities involved in TAPS. A ban on TAPS is effective only if it has a broad scope, otherwise the tobacco industry inevitably shifts to other strategies⁵. Also, TAPS regulations must be appropriately designed for future industry strategies and products, and must continuously progress, as they can be quickly outdated¹¹.

Comprehensive ban on billboards, posters, and other types of advertising outside the home

This should be applied especially for new nicotine products which are not yet regulated in the EU^15,16.

Comprehensive ban at points of sale and decrease in retail availability

This should be applied since tobacco retailers are a key pillar in TAPS¹⁸ with the effect of promoting tobacco and nicotine product use, especially among youth^6,27. Display of tobacco products and vending machines at points of sale are a type of TAPS⁸. Moreover, advertising and promotion of smoking accessories, such as cigarette papers, filters, equipment for rolling cigarettes and imitations of tobacco products, among others, may also promote the consumption of these products⁹. In countries with TAPS bans at points of sale, the prevalence of smoking is significantly lower among adolescents, suggesting that these bans can reduce youth smoking²⁸. The ban should also apply to ferries, airplanes, ports and airports. Only the textual listing of products and their prices, without any promotional elements, should be allowed⁹. The majority of the EU MS ban advertising¹⁷ and promotional activities at points of sales for traditional tobacco products, e-cigarettes and HTPs¹⁷; eight EU MS ban display¹⁶ and six ban vending machines for these products²⁹. The tobacco industry offers retailers agreements with incentives³⁰ that enable substantial manufacturer control of tobacco product availability, placement, pricing and promotion in the retail setting³⁰. Promotional activities to retailers should be banned³⁰. The widespread retail availability of tobacco weakens actions to reduce TAPS connected to retail¹⁸. Therefore, retail availability should be reduced. Tobacco sale at educational establishments, hospitality, sporting, healthcare centers, entertainment, music, dance and social venues or events should be banned. Licensing of manufacturers, wholesalers and retailers is another effective method for controlling TAPS^9,10.

Comprehensive TAPS ban in entertainment, internet, social media and mobile applications

This is the major gap in the EU TAPS regulations^14,15, has vast reach to youth¹⁹ and is highly effective because it is ubiquitous, interactive and personalized²⁰. In countries with TAPS bans, up to one-third of adolescents still report exposure to TAPS online, which implies that current regulations do not adequately protect youth²¹. The depiction of tobacco in entertainment media products can strongly influence tobacco use, particularly among youth^3,9,19, even if it is brief ^3,4,10. Digital content is cross-border in nature, and service providers can be located in a different country than the one where the service is accessed¹⁹. Thus, TAPS in digital media are challenging to regulate¹⁴, especially when content is produced abroad¹⁶. Cross-border digital media use provides emerging channels for TAPS that are outside of existing regulatory control for governments²⁰. Next-generation digital technologies (virtual reality, augmented reality, blockchain technology) and the growth of new digital spaces (metaverse), will very likely offer additional opportunities for TAPS, which might occur even further out of regulators’ eyesight and in spaces where jurisdiction is unclear, posing additional challenges to regulation²⁰. Each social media platform sets its own restrictions on TAPS²², but self-imposed policies of social media platforms are insufficient to restrict TAPS^18,22, therefore, it is imperative to regulate TAPS and include age verification in social media platforms at the EU level²². Digital media communication platforms must apply and enforce existing TAPS bans in accordance with the national laws¹⁹. Moreover, media productions with smoking imagery should be ineligible for public subsidies²³. There should be an intensive use of new technologies to assist in eliminating cross-border TAPS²³, such as the Tobacco Enforcement and Reporting Movement, which is an artificial intelligence-powered digital media monitoring system²⁰.

Comprehensive TAPS ban on internet sales

This should apply not only to not only to entities that sell the products^9,25 but also to all individuals and entities engaged in any transaction²⁵. Through online sales, products such as snus are available to customers in the EU MS, where the sale of these products is banned, and so the industry contravenes regulations²⁶. Internet sales also pose additional problems, such as sales to minors and challenging monitoring and enforcement, especially when domains are registered in another country^14,15. Currently, at least 16 EU MS have bans on online sales of traditional tobacco products for smoking, e-cigarettes and HTPs by specialist retailers¹⁵.

Comprehensive ban on corporate social responsibility actions, corporate promotion and ‘brand stretching’

This should be applied, although most EU MS have already implemented such bans¹⁵. Some countries report that it is difficult to determine in court when such actions represent TAPS¹⁶. Corporate social responsibility actions and corporate promotion enable access to and dialogue with policymakers for the tobacco industry in order to influence policymaking, which underlines the need for stronger implementation of Article 5.3 of the WHO FCTC³⁵. ‘Brand stretching’ (also known as ‘brand extension’ or ‘brand sharing’) is a marketing strategy where a company uses its existing brand name on a new product and should be regarded as a sponsorship form of TAPS⁹. Just over a half of EU MS have implemented total bans on ‘brand stretching’ and imitation products for traditional tobacco products for smoking, e-cigarettes and HTPs¹⁵. Also, the comprehensive TAPS ban on the production and distribution of items such as sweets, snacks and toys or other products that resemble cigarettes or products, devices and accessories may help achieve public health goals of reducing tobacco use in youth as these products promote consumption^9,35,36. At least six EU MS have already introduced these bans; half of them ban manufacturing and selling sweets, snacks, toys, or other items resembling tobacco products intended for people under the age of 18 years²⁹.

Strong enforcement and monitoring of the TAPS ban with the EU wide and international collaboration, implementation of public education and community awareness program

This is the most efficient way to eliminate cross-border TAPS¹⁹. Most EU MS have provisions in place to ensure monitoring and enforcement of national TAPS regulations. Challenges are mainly the lack of human resources, administrative burdens or delays, and instances in cross-border TAPS in which it is difficult to conduct inspections and determine responsibilities¹⁵. Enforcement of TAPS bans can be improved by having an EU harmonized enforcement system and compliance tool, especially for regulating digital entertainment media¹⁹. Given the covert nature of TAPS and the difficulty of identifying and reaching offenders, special domestic resources are needed to make enforcement and monitoring of these bans operational⁹. The tobacco industry should be required to disclose all expenditures associated with TAPS¹⁹. Wide definition of responsible entities, dissuasive penalties, civil society and citizens’ involvement in the monitoring and effective enforcement of the ban, are necessary⁹. Public awareness of the need to eliminate TAPS should be promoted and strengthened in all sectors of the society⁹.

Plain packaging

Packaging is an important element of TAPS, decreased by plain packaging, which should apply to all different tobacco and nicotine products^31,32.

Limitations

We derive some recommendations based on different sources of information that are, in turn, subject to some potential sources of error. First, the consultation with experts was a cross-sectional qualitative survey. We cannot disregard participation bias due to the strategy of recruiting volunteer participants based on the stakeholders identified within the JATC2 and other European networks. No census of experts exists, preventing any kind of sampling, and participation was voluntary, but the response rate was almost 50%. We succeeded in recruiting experts not affiliated with government bodies (e.g. national or regional Ministries of Health or Public Health Agencies), thus minimizing potential self-complacency bias. The combination of these sources of information provides a reliable picture of the gaps and solutions to improve TAPS regulations in the EU and its MS. The way in which our recommendations may have implications beyond the EU borders is out of the scope of this work.