July 23, 2021

Volume XI, Number 204

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FTC Orders E-Cigarette Manufacturers to Provide Advertising and Sales Information

The Federal Trade Commission (FTC) has issued orders to five e-cigarette manufacturers (JUUL Labs, Inc., R.J. Reynolds Vapor Company, Fontem US, LLC, Logic Technology Development LLC, and NJOY, LLC) seeking information about the companies’ 2019 and 2020 sales, advertising, and promotions. The FTC sent similar orders to the same companies in October 2019 seeking information for prior years as part of an ongoing FTC study of the rapidly expanding U.S. e-cigarette market.

The new compulsory orders request detailed information about flavors, the specific form of nicotine used in each product, sales, and giveaways for each brand; product placements, websites and social media accounts used to advertise, promote, or sell e-cigarette products; marketing and advertising expenditures for social media and other campaigns; promotional events (including those held on college campuses); and the use of influencers and brand ambassadors, and other advertising matters. Any company that has received any FTC compulsory order knows first-hand how time-consuming it can be to respond. Responses are due no later than May 12, 2021.

Both the FTC and the Food and Drug Administration (FDA) have been active in reviewing vaping companies’ advertising practices. In 2019, the agencies issued warning letters to four e-liquid manufacturers that used influencers to promote their products because the influencers failed to include the FDA-required nicotine warning. The FTC took the opportunity to remind companies of their obligation to ensure that their influencers clearly and conspicuously disclose their relationships to the brands when promoting or endorsing products, as required by the FTC’s Endorsement Guides.

In addition to actions by the FTC and FDA, social media sites have updated their guidelines over the years to address advertisements and posts pertaining to e-cigarettes and other regulated products. Thus, there are a host of regulations and guidelines for vaping companies to consider when promoting their brands and products online and hiring or encouraging others to help spread the word.

© 2021 Keller and Heckman LLPNational Law Review, Volume XI, Number 62
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About this Author

Sheila Millar, Keller Heckman, advertising lawyer, privacy attorney
Partner

Sheila A. Millar counsels corporate and association clients on advertising, privacy, product safety, and other public policy and regulatory compliance issues.

Ms. Millar advises clients on an array of advertising and marketing issues.  She represents clients in legislative, rulemaking and self-regulatory actions, advises on claims, and assists in developing and evaluating substantiation for claims. She also has extensive experience in privacy, data security and cybersecurity matters.  She helps clients develop website and app privacy policies,...

202-434-4646
Tracy Marshall, Keller Heckman, regulatory attorney, for-profit company lawyer
Partner

Tracy Marshall assists clients with a range of business and regulatory matters.

In the business and transactional area, Ms. Marshall advises for-profit and non-profit clients on corporate organization, operations, and governance matters, and assists clients with structuring and negotiating a variety of transactions, including purchase and sale, marketing, outsourcing, and e-commerce agreements.

In the privacy, data security, and advertising areas, she helps clients comply with privacy, data security, and consumer protection laws, including laws governing telemarketing and...

202-434-4234
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