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FTC and FDA Send Warning Letters to E-Liquid Companies Related to Deficient Social Media Endorsements

As we have discussed in a prior post, the FTC and FDA have been involved in a joint effort to curb non-compliant labeling and/or advertising of e-liquids for use in e-cigarettes. For the most part, the agencies have been focused on protecting children and young people from the dangers of nicotine and tobacco products by cautioning manufacturers, distributors and retailers of e-liquid products against using labeling, packaging and/or advertising that resembles children’s food products, like juice boxes, candies or cookies.

The FTC and FDA have recently broadened their focus to encompass the social media promotion of such e-liquid products. On June 7, 2019, the regulatory agencies sent four warning letters to e-liquid manufacturers, citing posts by social media influencers on platforms such as Facebook, Instagram and Twitter that endorse the companies’ products, but omit any warning that the products contain the addictive chemical nicotine.

In each of the warning letters, the FDA asserts that such nicotine warnings have been required since August 2018, therefore the omission of the nicotine warning renders the e-liquid products misbranded. Moreover, the FTC directs the companies to its Endorsement Guides, highlighting the requirements that social media influencers clearly and conspicuously disclose their material relationship to the brands they are promoting or endorsing.

The FTC advises the companies to review their marketing, including social media posts by influencers, so as to ensure both the proper nicotine warning and the material connection disclosures are included in all social media posts promoting e-liquid products. Further, the FTC suggests that the companies create (if they do not already have one) and properly implement a compliant social media policy.

The warning letters direct the companies to notify the FTC, within 15 days of receipt of the warning letters, of the actions that the companies are undertaking to alleviate the FDA’s and FTC’s concerns.

Takeaway: These warning letters serve as yet another reminder of the FTC’s position on disclosing material connections in social media posts in general. Further, in addition to previous warning letters and regulatory actions directed at e-liquid companies, these warning letters demonstrate that regulators are continuing to monitor the marketing and promotion of such products.

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