In recent days, there have been a number of broadcast trade press articles about new regulations that have gone into effect for e-cig advertising. We wrote about the FDA proceeding which dealt with these rules here. There appears to be much confusion over what the new rules require, and what is effective now and what will become effective after an FDA rulemaking to determine the specifics of the requirements for e-cig advertising. Right now, as set out in an FDA blog post, there are new restrictions on the sale of e-cigs to those under 18. Also, requirements were already in place that prohibit the promotion of e-cigs by making health claims, and they have not changed. As we said in our prior article, saying that e-cigs are better for your health than regular cigarettes, or that they can help you kick the smoking habit, are prohibited.
In addition, new rules will take effect in two years that will require that e-cig ads have new warnings – specifically “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” The FDA will, during that two year period, adopt rules that specify how that message will be conveyed in various advertising media. There have been trade press articles that have suggested that the e-cig ads will require tags containing 6 different specific health warnings. In fact, as we made clear in our earlier article, those warnings apply not to e-cigs, but to cigars, and are consistent with a prior settlement agreed to by the cigar manufacturers.
So the rules that are now effective do not appear as onerous as some recent articles may have suggested. Nevertheless, these rules are being appealed by some e-cig manufacturers, and at least one senator has put out a statement condemning their effect on the business of the e-cig industry. But, for now, stations should work with their advertisers to make sure that they comply with the current rules – avoiding pitches to those under 18, and avoiding health benefit claims, to keep those advertisers out of hot water with the FDA.