New Federal Advertising Rules on E-Cigs and Other Tobacco Products Adopted – To Become Effective within Two Years

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.

While the restrictions don’t by their terms bind broadcasters, but instead put burdens on manufacturers and retailers of these products, 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. Moreover, the FDA promised follow-up rules to flesh out some of these advertising requirements which, for the most part, take effect in two years.

The news rules do not extend the Congressionally-imposed ban on advertising on radio and TV, but instead require health warnings to be included both in the packaging of the tobacco-related products and in the advertising for those products. For e-cigs and pipe tobacco, ads 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. Specifically, 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 FDA says that the advertising disclosures need to be included in all advertising, no matter the medium. Specifically included in the requirements were ads on TV, advertising delivered through the Internet or by mobile devices, and any audio promotions. (Note that the advertising prohibition on radio and TV remains in place for “little cigars,” but larger cigars may still be advertised on radio and TV.) As indicated above, the FDA promised additional guidance as to how to comply in the various unique media during the 24 month transition period.

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% of 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). Presumably, when the FDA issues clarifying rules for each medium, whether these “visual” rules apply to TV will be made clear. The disclosures must be in English except if presented in a medium that is principally presented in some other language, then the disclaimers should be in that other language.

The new rules also limit other promotions that could affect advertising. For instance, for any tobacco product, the FDA has banned the use of terms like “low,” “light,” or “mild,” or other terms that suggest that there are lessened health risks from a product unless the FDA has itself approved the use of the term describing the lessened risk. The FDA also banned free samples of any tobacco product – so don’t expect any on-air giveaways.

So, while e-cigs have been a popular advertising category, watch for advertisers to become far more cautious as the effective dates of these new rules kick in.