Broadcast trade reports on new FDA rule creates confusion over E-cigarette advertising

posted on 8.16.2016

A spate of recent broadcast trade articles concerning a new FDA rule that went into effect this month has caused some confusion amongst the ranks of broadcast sales executives about the advertising of e-cigarettes (vaping products).  

Under the new FDA regulation:

• It is illegal nationwide to sell cigars, hookah tobacco, and e-cigarettes to anyone under age 18 and retailers will need to check photo ID of anyone under age 27.
• Retailers will not be allowed to give away free samples of newly deemed tobacco products.
• Retailers will not be allowed to sell cigars, hookah tobacco, and e-cigarettes in a vending machine where anyone under age 18 has access at any time.

The move means vaping advertising may not be directed to those under age 18.

Additionally, questionable health claim benefits of vaping in advertising may not be made under the new FDA rule.

David Oxenford, an attorney with TAB Associate member law firm Wilkinson Barker Knauer, said making health claims that “e-cigs are better for your health than regular cigarettes, or that they can help you kick the smoking habit, are prohibited.”

To be clear, most of the new regulations affecting advertising of e-cigarette products will take effect in two years’ time as the FDA adopts rules that specify how that message will be conveyed in various advertising media.

Oxenford said the as yet to be developed and adopted rules “will require that e-cig ads have new warnings – specifically “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”

Recent trade press articles erroneously suggested that the e-cig ads will require tags containing 6 different specific health warnings, when in fact those warnings apply not to e-cigs, but to cigars, and are consistent with a prior settlement agreed to by the cigar manufacturers.

Oxenford wrote about the new FDA rules extensively in an article earlier this year.

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.

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