By: David Oxenford, Wilkinson Barker Knauer LLP
We’ve written many times about the legal concerns about advertising for various vices – including e-cigs (see, for instance, our article here) and CBD (see for instance our articles here and here). The issues with these products never seem to go away, and in recent days, they have become even more pronounced. On e-cigs and vaping products, we have advised that ads need to avoid health claims, must contain an FDA-required warning that they contain nicotine and can be addictive (see our articles here and here), and that they should not be aired during programming targeting children (see our article here). We recently also added a warning that action might be coming against flavored vaping products. This week, the headlines are full of news announcing a new Federal ban on flavored vaping products that may go into effect in the next few months, following a state ban that was recently instituted in Michigan. On CBD, in addition to concerns about laws that still make the product illegal in many states, we’ve discussed concerns about whether the product is legally produced from hemp (see our article here), and highlighted prohibitions on health claims (see our article here) and ads directed to an underage audience. This week, we saw another set of warnings from the FTC targeting advertisers making specific health claims about their products. These actions should serve as a warning to broadcasters and other media companies to proceed very carefully, only after receiving legal advice, before jumping into advertising for these products.
On the vaping front, Michigan recently became the first state to totally ban flavored e-cigarettes – including mint and menthol flavored vaping products. See the Michigan Department of Health and Human Services “Finding of Emergency” here, and the Governor’s announcement here. While there was some indication that the vaping industry might fight that ban, with the news yesterday that the Trump administration plans to ban these products on a Federal level (see this statement from the FDA indicating that it will soon announce specific rules for the Federal ban on these products), broadcasters need to be concerned about running advertising for products that may be considered illegal. With the recent rash of other serious health consequences of vaping, it is quite possible that further regulation of these products will follow, and so may lawsuits from the vaping industry. In the interim, the FDA notes that it will be running advertising to combat underage vaping and to warn about the potential health issues, so look for those advertising opportunities.
On CBD, we have written about FDA and FTC actions against advertisers who have made specific health claims for those products – a practice banned for essentially all of these products except for the one CBD-based prescription drug that has received FDA approval for use in combatting seizures (Epidiolex). Other health claims, even very general ones, have brought these admonitions from Federal agencies (as well as some state authorities). This week, three additional letters were released targeting the marketing of two other CBD producers (see the FTC statement here and its blog on the action here). These actions reinforce the admonition that, even if you can overcome all of the other potential state and Federal issues about CBD, be sure to avoid taking ads that make health claims.
Both vaping and CBD ads entail risks, and these risks are likely to increase in the near term. As noted, we can expect new rules federally banning flavored e-cigs, and we have been expecting for quite some time rules from the USDA on its framework for approval of state plans to regulate CBD and other hemp production, as well as FDA rules on the sale and marketing of CBD products. Keep a careful eye on these developments and consult with counsel in making any advertising decisions in any medium.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.