The Federal Trade Commission and the U.S. Food and Drug Administration (FDA) today sent four warning letters to firms that manufacture and market flavored e-liquid products. The letters cite postings by influencers on social media sites such as Facebook, Instagram, and Twitter that endorse the target companies’ products, without any warnings that the products contain nicotine, an addictive chemical.
The FDA determined that the featured e-liquids are misbranded because the social media posts do not include the nicotine warning, which has been required since August 2018.
The FTC stated that the FTC Act’s prohibition on unfair or deceptive practices includes the failure to disclose material health or safety risks in advertising. The FTC noted that given the significant risk of addiction, the failure to disclose the presence of and risks associated with nicotine raised concerns that the social media postings could violate the FTC Act.
The FTC also reminded the companies that social media influencers should clearly and conspicuously disclose their relationships to the brands when promoting or endorsing products through social media. The FTC pointed out that its Endorsement Guides provide that if there is a material connection between an endorser and an advertiser, that connection should be clearly and conspicuously disclosed unless it already is clear from the context of the communication.
“These letters are a reminder that companies who use social media influencers to promote their products must comply with all applicable advertising requirements,” said Andrew Smith, Director of the FTC’s Bureau of Consumer Protection. “Moreover, ads must disclose material health or safety risks—in this case, the fact that nicotine is highly addictive.”
The companies receiving the letters are Solace Technologies LLC (d/b/a Solace Vapor), Hype City Vapors LLC, Humble Juice Co. LLC, and Artist Liquids Laboratories LLC (d/b/a Artist Liquid Labs).
The FTC urged the companies to review their marketing, including endorsements by social media influencers, to ensure that necessary and appropriate disclosures are made about the health risks of nicotine and any material connections with their social media influencers. 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 letters and to posts by other endorsers. If the companies do not have a written social media policy, the FTC recommended that they consider implementing one.
The joint FTC/FDA letters instruct the companies to notify the FTC within 15 days of receipt about actions taken to address the FTC’s concerns.
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The FDA, an agency within the U.S. Department of Health and Human Services, promotes and protects the public health by, among other things, assuring the safety, effectiveness, and security of human and veterinary drugs, vaccines and other biological products for human use, and medical devices. The agency also is responsible for the safety and security of our nation’s food supply, cosmetics, dietary supplements, and products that give off electronic radiation, and for regulating tobacco products.
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