We recently wrote about some of the challenges for e-cig advertising based on Federal and state actions to restrict the sale of flavored vaping products. Even though advertising for e-cigarettes is not currently illegal at the Federal level (see our articles here and here that discuss the disclaimer that must accompany those ads and the requirement that ads should not make health claims or target children), there are moves to change that position (including the announcement we wrote about last month of an anticipated ban on flavored vaping products). While changes to those rules have not yet been implemented , a recent set of letters from a Congressional committee to the manufacturers of e-cigs suggests that they stop marketing vaping products (or at least report to the committee whether or not they have stopped such advertising) while various government reviews of health issues associated with vaping and the marketing of vaping products are taking place. Among these reviews is a just-announced proceeding by the Federal Trade Commission to look at the marketing practices of e-cig companies. The detailed questions sent to the e-cig companies indicate that the FTC intends a very thorough review of all aspects of these marketing programs.
These Federal actions have been combined with announcements in many states looking toward significant regulation of the vaping industry. As we wrote last month, Michigan’s governor has announced a ban on the sale of flavored e-cig products. The text of the order implementing that announcement has now been released. Other states are following suit, with a ban in Massachusetts reportedly in place, and actions in Washington State and Ohio being considered. Many municipalities are also looking at similar restrictions.
Looking at all of these actions, many media companies have already stopped accepting e-cig ads, even though some of these bans have been challenged by the manufacturers. With the legality of these products in question in many jurisdictions, media companies need to look at their advertising practices, react to avoid promoting products in jurisdictions where they are illegal, and watch carefully to see how events develop. While preparing their advertising budgets for 2020, broadcasters need to be cautious in counting on revenue from this industry to meet their goals.