cigOn August 8, 2016, new rules issued by the Food and Drug Administration (“FDA”) will go into effect concerning radio, television and online advertisements for electronic cigarettes (“e-cigs”) 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.  In addition, as of August 8, 2016, advertisements for e-cigs and other tobacco products cannot be targeted at persons under 18 years of age.  Although these rules do not apply to broadcasters directly, broadcasters should be aware of them in order to assist their clients’ compliance efforts.

In 2018, additional advertising rules will go into effect.  Beginning on May 10, 2018, advertisements for e-cigs and the other products listed above must include a new warning that states: “WARNING: This product contains nicotine.  Nicotine is an addictive chemical.”   Advertisements for regular size or large cigars must contain either the nicotine warning or any of the following warnings:

  • 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 SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and Low Birth Weight.

Importantly, the warning requirement does not replace the federal ban on broadcast advertisements for cigarettes, little cigars, and smokeless (chewing) tobacco.   Advertisements for cigarettes, little cigars, and smokeless tobacco will continue to be banned after the FDA’s new rules go into effect.  (“Little cigars” are defined as “any roll of tobacco wrapped in leaf tobacco or any substance containing tobacco (other than any roll of tobacco which is a cigarette) and as to which one thousand units weigh no more than three pounds.”)

The warning requirement will apply to all forms of advertising, regardless of the medium in which the ad appears.  Thus, the rule will apply to advertising appearing in or on television, radio, internet web pages, social media, e-mail, apps, and “other communication tool[s].”   Television, social media, and other advertisements with a “visual component” must ensure that the warning appears on “at least 20 percent of the area of the advertisement” and that it is printed in 12-point (or larger) font in either Helvetica and Arial typeface.   In addition, the warning statement must be in English, unless the advertisement appears in a non-English language publication, in which case the warning should appear in the primary language used in the publication.   The FDA intends to provide additional guidance on how to comply with the warning requirement for different types of media.

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