E-Cigarettes Come Under Increasing Fire10 Feb, 2015 By: John Waller, Blank Rome LLP, Jeffrey Richter
As the popularity of e-cigarettes has substantially increased during the past few years, the marketing claims being made about them and the health consequences of vaping or being exposed to second hand fumes from their use have come under increased scrutiny. What was once a largely unregulated product is now the subject of proposed regulations by the Food and Drug Administration (FDA) and several states.
In addition, several putative class actions are currently pending against several manufacturers and distributors of e-cigarettes, challenging several of the common marketing claims being made about them, including that they are healthier to smoke than traditional cigarettes and that they aid smokers of traditional cigarettes in kicking their smoking habits.
Although the courts have determined that e-cigarettes may not be regulated by the FDA as a drug or medical device, they have held that the FDA can regulate them as a tobacco product. As a result, the FDA initiated rulemaking proceedings with respect to e-cigarettes. As presently proposed, those rules would include the prohibition of the sale of e-cigarettes to minors, prohibiting their marketing by giving away free samples, requiring that advertising for e-cigarettes and their packaging display health warning statements regarding nicotine, and requiring that certain claims – such as that e-cigarettes are healthier or less harmful to use than traditional cigarettes – be supported by competent scientific evidence.
Concern about existing advertising and marketing of e-cigarettes is not confined to the FDA. At least 27 state attorneys general have urged the FDA to pursue its rulemaking with the aim of securing stronger regulations, and several states are pursuing their own regulations with respect to e-cigarettes.
The California Department of Public Health (CDPH) recently launched an initiative to secure regulations in California governing e-cigarettes. In its recently released report, the CDPH notes that teen use of e-cigarettes is now more prevalent than use of traditional cigarettes and that adult use of e-cigarettes is increasing at dramatic rates.
The CDPH’s report also notes that the aerosol produced by e-cigarettes has been found to contain at least 10 chemicals that are on California’s Proposition 65 list of chemicals known to cause cancer, birth defects or other reproductive harm. The CDPH’s report further notes that the marketing and advertising of e-cigarettes is often aimed at children by, among other means, employing fruit and candy flavors and using cartoon characters in their advertising. Both techniques were previously used and highly criticized in connection with marketing and advertising traditional cigarettes. The CDPH’s report concludes that there is no scientific evidence that e-cigarettes help smokers of traditional cigarettes quit smoking.
In addition to the looming prospect of increased government regulation, substantial private plaintiff court challenges are being mounted to some of the marketing practices and advertising claims commonly employed by many e-cigarette manufacturers and distributors. Several separate putative class action lawsuits are currently pending in California and similar lawsuits in other states are likely. The primary focus of the pending lawsuits is on the claims that e-cigarettes are healthier than traditional cigarettes and aid consumers in quitting traditional cigarettes.
If the plaintiffs in those lawsuits prevail, and assuming that e-cigarette manufacturers and distributors can remain in business after those cases are concluded and anticipated new regulations become effective, manufacturers and distributors of e-cigarettes are likely to face a host of new restrictions on their marketing and advertising practices. A careful review of existing marketing and advertising practices, and prompt implementation of appropriate changes in those practices in anticipation of the new regulations and court rulings, may help manufacturers and distributors of e-cigarettes weather the coming storm – rather than being snuffed out.