FDA/FTC Issue Warning Letters To E-liquid Sellers

The U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC) have issued joint warning letters to four companies that sell e-liquids. These warnings come as the FDA pledges to take action against the growing trend of youth use of e-cigarettes, and are indicative of further FDA regulation to come.

FDA cited advertising violations as the companies’ respective infractions. The companies in question used social media influencers to advertise their flavored e-liquids on Facebook, Twitter, and Instagram. Under the Food, Drug and Cosmetic Act (FD&C), social media posts on behalf of a company are considered advertisements, and are thereby subject to all applicable restrictions and regulations. The e-liquid companies neglected to include a mandatory Nicotine Warning Statement (or neglected to have the influencer include this warning) and thus violated the act.

FDA is actively penalizing companies who violate this advertising rule as part of its “Youth Tobacco Prevention Plan.” In an effort to combat youth use of tobacco and e-cigarettes, FDA has proposed three main courses of action:

1. prevent illegal access (to tobacco/vape products);

2. curb marketing aimed at youth (i.e. reduce the attractiveness of these products to youth); and

3. educate teens about the dangers of tobacco and e-cigarettes, as well as retailers about their role in protecting youth.

FTC joined FDA in issuing warning letters for reasons of their own. By failing to include a Nicotine Warning Statement in their social media advertisements, the four e-liquid companies violated the FTC's prohibition of unfair business practices. Their not including a warning statement is a direct violation of the FD&C's mandate for advertisers to disclose any and all health and/or safety risks associated with the product.

Additionally, the companies failed to adhere to FTC advertising disclosure requirements. If there is a “material connection” (e.g. an exchange of money) between the endorser (in this case, the social media influencer) and the marketer of a product (the e-liquid company), there needs to be a “clear and conspicuous” disclosure of that relationship. The companies engaged in deceptive marketing by failing to meet the disclosure standard.

These joint warning letters are a particularly interesting example of the issues faced by an evolving market operating in an evolving marketplace. FDA regulations regarding vape/tobacco products are ever-changing and it is important to stay abreast of the new information in order to ensure your business is operating lawfully and avoid penalties.

For more information on the warning letters, follow the links below.

FDA: https://www.fda.gov/news-events/press-announcements/fda-ftc-take-action-protect-kids-citing-four-firms-make-sell-flavored-e-liquids-violations-related?utm_source=Eloqua&utm_medium=email&utm_term=stratcomms&utm_content=pressrelease&utm_campaign=CTP%20News%3A%20Social%20Media%20Influencers%20WL%20Pulled%20Quote%3A%206719

FTC: https://www.ftc.gov/news-events/blogs/business-blog/2019/06/ftc-fda-warning-letters-influential-influencers-marketers

If you have any questions about FDA/FTC warning letters, or regulations, feel free to send us a message through the Contact form on the Home Page.