In recent months, there have been many calls to regulate e-cigs, and potentially to regulate the marketing of all sorts of vaping products, including a call last week by an FCC Commissioner in an op-ed article in USA Today. As we wrote several months ago, these suggestions have been based in the fear that increased promotion of vaping products have led to an increase in tobacco use among children. While the FDA has been taking efforts to crack down on flavored vaping products to reduce their appeal to kids, the makers of e-cigs still advertise, including on radio and TV. And those advertisements bring us frequent questions about whether the FCC has rules about advertising these products. So far, the FCC has had no real role in regulating these products. In fact, one wonders if it really has any authority to take action against the advertising of e-cigs without Congressional action.
So far, all the limits on e-cig advertising have been imposed by other agencies – principally, the FDA. The FDA requires a tag on all vaping ads, stating that these products contain nicotine, which is an addictive substance (see our articles here and here for more details about that requirement). And these ads should not claim health benefits for vaping. Given the FDA’s concern about children, any ads should also stay out of programming with a large audience of children. Could the FCC itself do more?