FTC and FDA Issue Vape Warning Letters
As part of ongoing efforts to protect youth from the dangers of nicotine and tobacco products, the Federal Trade Commission and the U.S. Food and Drug Administration recently announced that it has jointly issued 13 warning letters to manufacturers, distributors, and retailers for selling e-liquids used in e-cigarettes with labeling and/or advertising that resemble kid-friendly food products, such as juice boxes, candies, or cookies, some of them with cartoon-like imagery.
“Protecting young children from unwarranted health and safety risks is one of our highest priorities,” said Acting FTC Chairman Maureen K. Ohlhausen. “Nicotine is highly toxic, and these letters make clear that marketing methods that put kids at risk of nicotine poisoning are unacceptable.”
“No child should be using any tobacco product, and no tobacco products should be marketed in a way that endangers kids – especially by using imagery that misleads them into thinking the products are things they’d eat or drink. Looking at these side-to-side comparisons is alarming. It is easy to see how a child could confuse these e-liquid products for something they believe they’ve consumed before – like a juice box. These are preventable accidents that have the potential to result in serious harm or even death. Companies selling these products have a responsibility to ensure they aren’t putting children in harm’s way or enticing youth use, and we’ll continue to take action against those who sell tobacco products to youth and market products in this egregious fashion,” said FDA Commissioner Scott Gottlieb, M.D.
“While we continue to encourage the development of potentially less harmful forms of nicotine delivery for currently addicted adult smokers, we will not allow that work to come at the expense of our children. The FDA remains committed to important efforts to restrict youth access, limit youth appeal and reduce toxic exposure to youth from all tobacco products – and we’ll continue to address these issues from every angle. We’re going to be taking a series of escalating actions under our new Youth Tobacco Prevention Plan, beginning with our actions last week targeting JUUL products, and continuing with today’s effort with our partners at the FTC. We appreciate the FTC in joining us in these actions.”
Some examples of the products outlined in the warning letters, and being sold through multiple online retailers, include: “One Mad Hit Juice Box,” which resembles children’s apple juice boxes, such as Tree Top-brand juice boxes; “Vape Heads Sour Smurf Sauce,” which resembles War Heads candy; and “V’Nilla Cookies & Milk,” which resembles Nilla Wafer and Golden Oreo cookies. Other products include “Whip’d Strawberry,” which resembles Reddi-wip dairy whipped topping, and “Twirly Pop,” which not only resembles a Unicorn Pop lollipop but is shipped with one.
In late 2017, the FDA started its investigation of tobacco product labeling and advertising that causes the tobacco products to imitate food products, particularly those that are marketed toward, or appealing to, children. The products noted in the warning letters are considered misbranded in violation of the Federal Food, Drug, and Cosmetic Act because their labeling and/or advertising imitating kid-friendly foods is false or misleading.
The FTC joined the warning letters under Section 5 of the FTC Act, which prohibits unfair or deceptive marketing practices. This prohibition includes practices that present unwarranted health or safety risks. The products at issue are marketed in packaging that resembles foods and drinks popular with young children, and have scents similar to the juice, cookies, or candies the packages mimic. Given the serious child poisonings due to ingestion of liquid nicotine, the FTC said that marketing these products in packaging that is likely to be particularly appealing to young children could present an unwarranted risk to health or safety.
The FTC and FDA have requested responses from each of the companies. The warning letters also state that failure to correct violations may result in further enforcement action such as seizure or injunction.
Contact an FTC compliance and defense attorney if you are the subject of a local, state or federal advertising-related regulatory action or investigation.
Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements. You can find him on LinkedIn at FTC Defense Lawyers.
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