Earlier this month, the Federal Trade Commission (“FTC”) and the U.S. Food and Drug Administration (“FDA”) issued joint warning letters to four companies that market flavored e-liquid (vaping) products. The letters cite postings by influencers on social media sites endorsing the companies’ products and state that the influencers’ posts failed to include a required nicotine warning and a disclosure as to the influencers’ “material connection” to the companies.
According to the FDA, the featured e-liquids were “misbranded” because the social media posts failed to include a mandatory nicotine warning statement, in violation of the Federal Food, Drug, and Cosmetic Act (FD&C Act). Specifically, under the FD&C Act, all advertisements for e-liquids must bear the following warning: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” The letters also warned the marketers of their responsibility to ensure that their products and all related labeling and/or advertising on their websites or on any other websites or media in which the companies advertise comply with each applicable provision of the FD&C Act.
The FTC determined that the companies’ failures to disclose the presence of and risks associated with nicotine in their social media posts raised concerns that the posts could violate the FTC Act. Also, the FTC reminded the companies that all endorsements by social media influencers must adhere to the FTC’s Endorsement & Testimonial Guidelines by clearly and conspicuously disclosing any material connection between the endorser and the companies. As such, the FTC urged the companies to review their social media marketing to ensure compliance with the Guides. The FTC also suggested that if the companies have a social media policy, they should evaluate how it applies to the posts identified in the warning letters and posts by other endorsers. If the companies do not have such a policy, the FTC urged them to consider implementing one that provides appropriate guidance to endorsers.
Takeaway: These FTC/FDA warning letters underscore the fact that the FTC and FDA share joint jurisdiction over food, drug, cosmetic and tobacco claims made in social media posts. Their joint enforcement effort in this area coincides with the general Congressional view that vaping amongst teens is a major issue in need of regulation.