Federal 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.