FDA Announces New Rule for E-Cigarette, Cigar, and Other Tobacco Product Advertising

The Food and Drug Administration (FDA) has issued a Press Release announcing new regulations which expand the FDA’s authority to regulate e-cigarettes and other non-cigarette tobacco products, such as cigars, pipe tobacco and hookahs. The FDA’s decision to regulate all covered “tobacco products” is a result of the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking Prevention and Tobacco Control Act, which provide the FDA with the authority to regulate the tobacco industry. Of particular note to broadcasters, manufacturers and retailers will now be required to include health warnings in their advertisements for all “tobacco products” covered by the new rule, including ads for e-cigarettes. The rule was published in the Federal Register today, and although the rule is effective August 8, 2016, manufacturers have two years to come into compliance with health warning requirements of the new rule.

The new rule establishes a number of specific regulations, health warnings and other advertising obligations for tobacco product manufacturers and retailers, including a ban on sales of e-cigarettes to those under 18 years of age. The new rule does not impact the current broadcast prohibitions on advertisements for cigarettes, little cigars, and smokeless tobacco. And while the new rule is intended to regulate manufacturers and retailers of tobacco products, and not television and radio stations, broadcasters should nevertheless be aware that specific product health warnings will need to be included in all “tobacco product” advertisements. The content of the warnings varies depending on the specific product being advertised. For example, the new and specific FDA required disclosure for advertising e-cigarettes is the following: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” The new rule is written broadly and the disclosure requirements must be in all e-cigarette advertising, which will include ads appearing on radio and television stations and station websites.

As a result of the new rule, broadcast advertisements which specifically promote the sale and use of e-cigarettes or tobacco products, could potentially be deemed to violate the rule, depending, among other things, on the contents of the advertisements and how e-cigarettes or tobacco products are portrayed in the ads, and whether the ads meet the regulatory requirements of the rule.

Given the significant advertising dollars at stake, many broadcast stations are likely to continue to accept e-cigarette and other tobacco product advertisements. However, stations must be particularly cautious when airing such advertisements, and should ensure that any advertisements (including an e-cigarette ad) are compliant under all federal, state, and local cigarette and tobacco rules and regulations – including the newly adopted FDA rule. Because it is often difficult to define with precision what will trigger government scrutiny, we recommend that you contact us before accepting any tobacco product or e-cigarette related advertising that you believe may not comply with applicable rules and regulations.

Should you have any questions regarding this matter, please contact any of the attorneys in our office.

Categories: Media