October 19, 2016

e-cig-marketingFederal regulators, and states, counties and cities throughout the country, are enacting new laws, rules and regulations in the e-cigarette marketing space.

How can e-cig manufacturers and related marketing affiliates avoid regulatory enforcement?

FDA E-Cigarette Rulemaking

In May 2016, the U.S. Food and Drug Administration (“FDA”) issued new rules subjecting e-cigarettes and related marketing materials to the Federal Food, Drug and Cosmetic Act.  A number of federal e-cigarette marketing regulations have already taken effect under the FDA rulemaking, including restrictions on:

  • free samples;
  • e-cigarette labeling and advertising; and
  • marketing e-cigarettes in combination with other FDA-regulated products (e.g., food and cosmetics).

Other FDA regulations concerning e-cigarette packaging, advertising and applications for marketing authorization are scheduled to take effect in 2018 and 2019.

State and Local E-Cig Marketing Regulations

A growing number of additional e-cigarette marketing regulations and licensure requirements have been implemented at the state, county and city levels.

Many jurisdictions have simply redefined “tobacco product” to include e-cigarettes, or have otherwise amended preexisting tobacco marketing regulations to impose the same or similar restrictions on e-cigarette marketers, while others have enacted e-cigarette-specific regulations.  The outpouring of state and local laws, rules and regulations has resulted in a patchwork of varying e-cig marketing restrictions, including many related to:

  • free samples, coupons and other giveaways;
  • advertising on or within a certain distance of specific types of property (e.g., government-owned buildings, schools, playgrounds, bus stops and churches);
  • advertising through certain media (e.g., billboards, lottery tickets, free-standing signs and video games);
  • event and team sponsorships; and
  • licensure requirements.

E-Cigarette Marketers: Proceed with Caution

Lawmakers and regulators across the country are implementing stricter regulations in connection with e-cig marketing, often in the same vein as notoriously restrictive tobacco advertising laws already on the books.  In this rapidly developing regulatory landscape, e-cigarette manufacturers and related marketing affiliates are at risk of regulatory action and other adverse legal consequences.  As such, businesses and individuals operating in the e-cigarette space should be sure to speak with an experienced marketing attorney before commencing any e-cigarette marketing campaign.

If you are interested in learning more about this topic, or if you need to review your e-cigarette marketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Summary of the Newly Proposed E-Cig Regulations

New York Set to Hear New E-Cig Regulations Today

New World Order for E-Cigs

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