Even though advertising for e-cigarettes is not currently illegal at the federal level, there are moves to change that position (including the announcement last month of an anticipated ban on flavored vaping products).
A House of Representatives panel sent letters to four e-cigarette companies asking them to stop all print, broadcast and digital advertising of their products in the United States, the same day as market-leader Juul said it would pull its ads, the panel said on Thursday.
Amid heightened concerns over health issues, vaping/e-cigarette company Juul says it is suspending all advertising, as its CEO Kevin Burns stepped down on Wednesday. Recently, major TV network groups including CBS, Viacom and WarnerMedia began rejecting Juul advertising.
Television and streaming channels owned by WarnerMedia, CBS and Viacom will no longer run ads for e-cigarettes or e-cigarette products, including for industry powerhouse Juul, the companies said Wednesday.
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. 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.
Broadcasters should be very careful when considering whether to accept e-cigarette or vaping ads, especially on stations having a high percentage of minors or teens in their audience. The FDA has threatened to review the promotional activities of the e-cigarette and vaping industries to evaluate compliance with the law.
Last year, the FDA adopted requirements to tag advertisements for vaping and e-cig advertising with a warning that e-cigs contain nicotine and that nicotine is an addictive chemical. According to the FDA, the new disclosure obligations are still set to become effective on Aug. 10, 2018.
Next Monday, new rules issued by the Food and Drug Administration will go into effect concerning radio, television and online advertisements for electronic cigarettes and other Electronic Nicotine Delivery Systems (including e-hookah, vape pens, advanced refillable personal vaporizers, and electronic pipes), regular size or large cigars, pipe tobacco, and certain other tobacco products. Specifically, advertisements for these products cannot contain representations that the product presents a lower risk of tobacco-related disease or is less harmful than other commercially marketed tobacco products.
E-Cigs and vape shops have become a new advertising category for many broadcast stations over the last few years. In a “Final Rule” issued by the Food and Drug Administration (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.
A new commercial for NJoy e-cigarettes says “Friends Don’t Let Friends Smoke,” suggesting they instead replace tobacco with e-cigs.
The government shutdown could delay a Food and Drug Administration ruling that is expected to curb TV advertisements of e-cigarettes. The FDA had announced its plan to issue a decision in October on whether and how to regulate the booming e-cig industry. But the shutdown, now in its seventh day, has furloughed 45% of the agency’s employees, including some working on tobacco issues.
The Department of Justice says while e-cigarettes are often manufactured to look like conventional cigarettes, they do not contain a “roll of tobacco” and therefore are not subject to the federal ban on cigarette ads. So does that mean the floodgates are open on e-cigarette ads? Not quite. Here’s why.
Regulations to e-cigarette advertising could hit TV networks and publishers that have benefitted from renewed tobacco spending.