FDA Goes After Vaping ‘Influencers’ on Social Media

(CN) – The Food and Drug Administration called out vaping companies Friday for violating advertising rules through their social media promotions of flavored nicotine products by paid “influencers.”

This image shows a Sept. 4, 2018 post on Facebook cited by the U.S. Food and Drug Administration as promoting an e-cigarette formula without including the required nicotine warning statement. (AP Photo)

The FDA and Federal Trade Commission issued warning letters to four vaping companies that the agencies say failed to include a mandatory warning on social media promotions that vaping liquids contain nicotine.

Solace Vapor, Hype City Vapors, Humble Juice Co. and Artist Liquid Labs have 15 days to begin complying with the online advertising rules.

According to the FDA, each of the four companies paid social media “influencers” to promote their vaping liquids and devices online, but some of the influencers did not disclose their business relationship and did not adequately warn consumers that the products contain nicotine.

Twitter, Instagram, Facebook and other platforms are brimming with so-called influencers— social media users who have a large number of followers. Many of these trend-setting users are paid by companies in various industries to promote their products, but for years it was unclear as to whether they needed to disclose their business relationships.

In 2017, the FTC sent similar warning letters to celebrities, athletes, and other Instagram influencers, reminding them to fully disclose any connection they have to a company when promoting products online. Section 5 of the Federal Trade Commission Act prohibits unfair or deceptive advertising.

The FDA on Friday reminded vaping companies of the same rule, and alerted the businesses that influencers they pay to advertise products need to disclose their “material connection.”

Most vaping devices and e-cigarettes are considered electronic nicotine delivery systems, which meet the FDA’s 2016 definition of a tobacco product. That means they are primarily regulated as tobacco products. Since last year, all advertising for these devices and associated liquids are required to alert users of nicotine’s addictive nature.

“If your company has a material connection to someone endorsing your products, that relationship should be clearly and conspicuously disclosed in the endorsements, unless the relationship is otherwise apparent,” Friday’s warning letters state.

The regulators say consumers should be able to easily notice the required disclosure and not have to search for it. A product endorser needs to disclose any connection to a company above the “more” button on some social media feeds, because phone-scrolling consumers viewing Instagram streams typically see only the first two lines of a longer post. Many consumers do not click the option to expand details of a post, the FDA said Friday.

Multiple hashtags or links in a post may cause readers just to skip over disclosures where they appear at the end of a long post, amplifying the smoke screen surrounding an influencer’s business connections, according to the regulators.

E-cigarette and nicotine use by young people has hit epidemic levels in the past few years. From 2017 to 2018, it increased 78% among high school students and 48% among middle schoolers, according to the Centers for Disease Control and Prevention.

Last year, the FDA sent more than 1,300 warning letters and fines to retailers who illegally sold Juul, a smoking device popular among kids after successful social media advertising efforts, and other e-cigarette products to minors.

The agency called the crackdown a “nationwide, undercover blitz of brick-and-mortar and online stores.”

The FDA and other regulators are still working to prevent minors from accessing the devices and liquids, which are more appealing than cigarettes due to their flavors and social media advertising campaigns.

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