FDA passes vaping and other tobacco product advertising rules – effective by 2018

posted on 5.09.2016

After years of suggesting it would enact stringent guidelines on electronic cigarettes (e-cigarettes and vaping products), the Food and Drug Administration has published new rules affecting the sale of such products to minors and requiring health warnings in packaging and advertising.  

There is no ban yet, however, on the broadcast advertising of such products, but it could still come in the future.

The new regulations, which appeared in the Federal Register this week, allow broadcast advertising of such products but health warnings must be included in the advertising for those products.

Federal officials deemed the new rules “a foundational step” with the possibility of future restrictions.

Broadcasters should note that other tobacco products such as cigars, pipe tobacco and tobacco used in hookah and water pipes are also part of the new regulations, but similarly, advertising of these products remains legal.

For now, the ban on broadcast advertising of tobacco products only applies to cigarettes, smokeless tobacco products such as chewing tobacco or snuff, and so-called “little cigars”.

What is a “little cigar”?

While there is an extensive definition in existing federal law, one can think of a “little cigar” as those cigarette-sized cheroots versus those expensive, regular-sized cigars you store in a humidor for a special occasion.

In the past 20 years, cigar advertising has been on the rise on broadcast stations as have missives for hookah bars.

The past decade has witnessed the rise of the vaping industry, now topping $5 billion in annual sales.

The new rules essentially ban the sale of vaping products, cigars and hookah related products to minors and impose health warning requirements for advertising and packaging.

Vaping product companies already may not make e-cigarette health claims without the permission of the FDA.

For the most part, the new rules take effect in two years.

David Oxenford, an attorney with TAB Associate member law firm Wilkinson Barker Knauer, said the new restrictions don’t by their terms bind broadcasters, but instead put burdens on manufacturers and retailers of these products, and that “broadcasters need to be aware of the restrictions so that they can assist their clients in compliance – or at least push clients to seek help in assessing their compliance.”

Oxenford said e-cigarette and pipe tobacco advertising will need to include the phrase: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”

Cigar ads will need to have even more specific health warnings, consistent with a settlement agreement that major cigar manufacturers previously entered into with the Federal Trade Commission.

According to Oxenford, the following warnings will need to rotate in ads:

• WARNING: This product contains nicotine. Nicotine is an addictive chemical.
• WARNING: Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale.
• WARNING: Cigar smoking can cause lung cancer and heart disease.
• WARNING: Cigars are not a safe alternative to cigarettes.
• WARNING: Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.
• WARNING: Cigar use while pregnant can harm you and your baby. (Or, as an optional alternative statement: SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and Low Birth Weight.)

The new disclosures must be included in all advertising, regardless of the medium or platform, and must be in English except if presented in a medium that is principally presented in some other language.

In those cases, the disclaimers should be in that other language.

Oxenford cautions that while the requirements included in the rules themselves don’t specifically address television, they do say that for “visual” ads, the warnings must be 20 percent of the ad, and in 12 point bold black type on a white background, and go so far as to specify the font to be used (Helvetica or Arial).

He notes that when the FDA issues clarifying rules for each medium, whether these “visual” rules apply to TV will be made clear.

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