E-Cigarettes

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.