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.
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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

E-Cigs and vape shops have become a new advertising category for many broadcast stations over the last few years. Unlike ads for cigarettes, little cigars, and smokeless (chewing) tobacco, which are effectively banned on broadcast stations, there are currently few Federal rules on e-cigs. Ads currently cannot make health claims about the product (so the ads cannot say that they are healthier than smoking cigarettes, nor can an ad even make the claim that e-cigs help users stop smoking). While some states have placed some additional restrictions on sales that carry over into advertising (e.g. age restrictions on sales), the Federal government, until this week, had passed on imposing more sweeping regulation on the industry.

In a “Final Rule” issued by the Food and Drug Administration yesterday (to be published in the Federal Register on Tuesday), a number of new requirements were adopted for tobacco products generally, and e-cigs were included in the FDA’s definition of tobacco products. So, too were cigars, pipe tobacco and tobacco used in water pipes or hookahs – tobacco products not covered by the over-the-air advertising ban that applies to cigarettes and smokeless tobacco. The new rules have a number of implications for the e-cig industry generally, including bans on sales to those under 18 and requirements that the FDA conduct “pre-market review” and approval of any new tobacco product introduced to the market in February 2007 or later. Of particular note for broadcasters are new requirements for health warnings in advertisements for all tobacco products, including e-cigs.
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