E-cig advertising has been one of those areas where broadcasters and other media companies have been looking warily at the potential for regulatory intervention. So far, as we wrote here, the FDA has only required general disclosures that “e-cigs contain nicotine and that nicotine is an addictive chemical” – an obligation that took effect last month, on August 10 (see our article here, though note that advertising disclaimers on cigars and pipe tobacco that were also supposed to have taken effect on that date were postponed by a court order – see the FDA notice here). In addition to this required warning about nicotine, the FDA and other government authorities have separately prohibited ads for e-cigs or vaping from making any health claims (e.g. you can’t claim that they are better for your health than cigarettes or that they will help you kick the cigarette habit), and restricted any advertising directed to children (see our article here). On this last issue, as the New York Times wrote yesterday, the FDA has taken some aggressive regulatory actions against e-cig manufacturers (in particular, manufacturer Juul) and issued warnings that, if they cannot show that they are not targeting children with their products, they may be forced off the market. These actions suggest that broadcasters and other media companies approach those ads with caution.
Coupled with the FDA’s recent actions against the manufacturers, the FDA issued a series of warning letters and fines to retailers of e-cigs who had not been restricting the sales of these products to minors (see the FDA webpage about these actions here). Note that, in the sample letter to the targeted retailers that was provided by the FDA, it promises to review the promotional activities of these retailers to assess their compliance with all laws in this area. In earlier letters to the manufacturers (here), particular note was paid to ads for flavored vaping products, suggesting that these were particularly enticing to children. As we have written before, broadcast stations who have substantial numbers of minors in their audience (including any radio or TV broadcasters airing programming with audience demographics indicating that a substantial number of minors under the age of 18 are in that audience), for fear of FTC action and pursuant to voluntary alcohol industry guidelines, prohibit ads for beer or hard liquor in such programs. That same policy would seem wise in airing e-cig and vaping ads, given this aggressive regulatory activity by the FDA. In this environment, broadcasters in particular should consider all such advertising, and if they accept it, review its contents carefully and make sure that it meets or exceeds all guidelines and keep it out of programs with audiences with a substantial number of minors. Also, watch carefully for further state and federal actions in this area, and consult experts on these issues (and we do not claim to be FDA experts) to avoid any other issues that may arise. This obviously is an area of much concern for the government at this time, and broadcasters, as federally-regulated entities, need to approach any area of government concern with caution. The government, of course, already prohibits advertising for cigarettes and chewing tobacco, and it is possible that e-cig advertising could be headed in the same direction.