Kid Caution

On May 1, 2018, the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA) issued 13 joint warning letters to manufacturers, distributors and retailers that have misleadingly labeled or advertised e-liquids used in e-cigarettes to mimic products that appeal to kids, such as Tree Top-brand juice boxes, Golden Oreo cookies and War Heads candy. The two agencies are working together to protect young children from these liquid nicotine products and the potential danger they pose to kids who associate them with products that they eat and drink.

The letters claim misbranding in violation of the Federal Food, Drug, and Cosmetic Act because of the false or misleading nature of the e-liquid product labeling and/or advertising. The FTC adds that marketing e-liquids in packaging that resembles kid-friendly food products could present an unwarranted risk to the health or safety of children in violation of Section 5 of the FTC Act, which prohibits unfair or deceptive marketing practices.

The companies that received a warning letter have 15 working days to respond with information of specific corrective actions taken to address the agencies’ concerns and to describe plans for compliance. Failure to do so could lead to additional action, such as seizure or injunction.

The FTC’s chairman has stated, “Nicotine is highly toxic, and these letters make clear that marketing methods that put kids at risk of nicotine poisoning are unacceptable.” According to the FDA’s commissioner, “It is easy to see how a child could confuse these e-liquid products for something they believe they’ve consumed before, like a juice box. These are preventable accidents that have the potential to result in serious harm or even death.”

The Takeaway

Brands should be cautious about marketing or labeling products in ways that could confuse consumers, especially children, by a resemblance to other products. In particular, product packaging that misleads consumers and that could pose health and safety risks is likely to be targeted by regulators. The warning letters are part of the FDA’s continuing Youth Tobacco Prevention Program, which is aimed at addressing concerns with youth access to tobacco products. The FDA has stated that it will “be taking a series of escalating actions under [its] new Youth Tobacco Prevention Plan” to limit the appeal and exposure of tobacco products to youth. This demonstrates that the FDA will continue its focus on investigating and taking action against companies that mislead young consumers in the advertising and labeling of their products.