FTC, FDA Caution E-Cig Companies About Influencer Marketing

Advertising Law

The Federal Trade Commission (FTC) and Food and Drug Administration (FDA) sent warning letters to four companies that manufacture and market flavored e-cigarettes, expressing concern about their influencer marketing practices on social media.

The agencies stated that posts on sites including Facebook, Instagram, and Twitter by influencers touting the products of Solace Vapor, Hype City Vapors, Humble Juice Co., and Artist Liquid Labs failed to include warnings that their products contain nicotine, an addictive chemical.

The FDA explained that the e-liquids are misbranded in violation of the Food, Drug, and Cosmetic Act because the influencers’ posts about these products did not include the required warning statement: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”

Adding to the companies’ problems, the FTC warned that the failure to disclose material health or safety risks in the influencers’ posts raises concerns that these posts could be unfair or likely to mislead consumers, in violation of the FTC Act’s prohibition on unfair or deceptive acts or practices.

In the warning letter to Solace Vapor, the agencies provided the example of a vaper with 1.7 million Instagram followers who promoted Solace Vapor products with at least six posts between October 2018 and April 2019 but never included a warning that the products contain nicotine. One post read, “Start your day off right with solacevapor sea salt blueberry salt water taffy and tart blueberry flavors, refreshing your mind and thoughts,” with no disclosures or warnings.

The FTC also expressed concerns about the lack of clear and conspicuous disclosure of the material connection between the influencers and the companies, and reiterated the FTC’s guidance provided in the Endorsement Guides and subsequent publications on this topic.

The FDA gave the companies 15 working days to respond to the FDA-related violations describing what actions they planned to take to address the concerns raised in the letters. The FTC did not require such a written response, but urged the companies to review their marketing, including influencer endorsements, to ensure that appropriate disclosures are made.

To read the warning letters, click here.

Why it matters: These warning letters show that the FTC and now the FDA are actively monitoring influencer activity on social media and going after companies that they think are violating the law. In addition to the specific nicotine warning requirement under the FD&C Act, it is important to note that the FTC Act also requires disclosure of material health or safety risks in social media advertising. Additionally, these warning letters serve as another reminder that companies that engage in social media marketing would be well-served to review their influencer marketing practices and implement a written policy to ensure that necessary disclosures of material connections are made in compliance with the FTC’s Endorsement Guides.

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