June 18, 2019
On June 7, 2019, the U.S. Food and Drug Administration (“FDA”) and the Federal Trade Commission (“FTC”) together issued four warning letters to companies manufacturing and marketing flavored e-liquid tobacco products in connection with their failure to include required nicotine warning statements in social media posts. Under the Federal Food, Drug and Cosmetic Act (the “Act”), any advertising of tobacco products must include the following warning statement:
WARNING: This product contains nicotine. Nicotine is an addictive chemical.
Failing to provide this warning statement amounts to product misbranding that violates the Act. The FTC warned that this is also a violation of the FTC’s prohibition on unfair and deceptive practices because the social media posts at issue failed to disclose material health and safety risks. In the warning letters, the FTC details that all social media posts must disclose the material relationship between companies and their respective endorsers. The FTC Endorsement Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides”) advise of the proper way to disclose relationships in order to avoid any unfair or deceptive practices.
What are the FTC and FDA requesting?