Federal Advertising Regulations
June 2016 MBA Convention/Legal Session Slides by Gregg Skall
FTC Revised Endorsement Guidelines
The FTC revised it’s endorsement Guidelines in 2009 primarily to include social media application. They also produced a FACT sheet including Frequently Asked Questions for businesses.
Tobacco Broadcasting Rules
By act of Congress, “any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission” is prohibited from advertising cigarettes and little cigars.
No broadcast advertising can use the word “cigarette” or mention brands of cigarettes.
The prohibition extends to include the name of the business if it contains the word cigarette and/or a brand of cigarettes. The only exception is if a cigarette brand name is part of a program title, provided the mention does not constitute a commercial for the product. Note: this exception is a “gray area” and you are advised to consult with your legal counsel before proceeding.
Pipe tobacco or cigars, other than those meeting the definition of little cigars, may be advertised.
Please contact the MBA Legal Hotline or the MBA office for further guidance.
Tobacco Advertising Q & A (Pillsbury Sept. 2013)
FDA Issues E-cigarette Deeming Regulations Article by Gregg Skall, May, 2016
Advertising “Around” Cigarettes, Electronic And Otherwise Article by Gregg Skall, April 2011
The Food and Drug Administration has taken enforcement action against five electronic cigarette companies for violations of the Federal Food, Drug and Cosmetic Act, including unsubstantiated claims and poor manufacturing practices. It also claims that the safety of electronic cigarettes has yet to be proven. It might be necessary to broadcast an FDA warning disclaimer with the ad, since the FTC may decide one day that it is misrepresentation in advertising to broadcast an ad for e-cigarettes without that information. Furthermore, the use of the word “cigarette” remains problematic. It would be prudent for a station considering this advertising to ask for an indemnification and hold harmless agreement with the advertiser.
The D.C. Circuit Court of Appeals has held that the Food and Drug Administration (FDA) could not regulate electronic cigarettes as a medical device. Instead, the court affirmed the district court’s finding that FDA’s authority over these e-cigarettes, as labeled, was limited to that over traditional tobacco products.
The packaging and ads need to contain the following statement under the FDA regs: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”
The Federal Trade Commission issued revised “Green Guides” in 2012 that are designed to help marketers ensure that the claims they make about the environmental attributes of their products are truthful and non-deceptive.
The revisions to the FTC’s Green Guides reflect a wide range of public input, including hundreds of consumer and industry comments on previously proposed revisions. They include updates to the existing Guides, as well as new sections on the use of carbon offsets, “green” certifications and seals, and renewable energy and renewable materials claims.
In revising the Green Guides, the FTC modified and clarified sections of the previous Guides and provided new guidance on environmental claims that were not common when the Guides were last reviewed.