E-Cigarettes Gaining in Popularity—and in Regulatory Issues

Jennie Scholick Dec 17, 2014

The National Institute on Drug Abuse released a survey yesterday revealing that teenagers now use e-cigarettes at substantially higher rates than traditional cigarettes. The results of the annual, federal survey was written up in both the New York Times and the Wall Street Journal. Tripp Mickle, an expert on drugs and alcohol for the WSJ, writes:

A new survey shows U.S. teenagers are more likely to use electronic cigarettes than traditional cigarettes, a trend researchers say is driven by teens’ belief that e-cigarettes are less harmful.

The University of Michigan’s Monitoring the Future survey could add fuel to the policy debate over the battery-powered devices, which heat nicotine-laced liquid into a vapor and are regulated far more loosely than combustible cigarettes.

This news and these articles caught our attention for a couple of reasons. First (full disclosure here), we work with e-cigarette companies, so we’re always interested when we see the words “regulated” and “e-cigarettes” in the same sentence. Second, we know that e-cigarette companies probably become very nervous when they see a phrase like “teens’ belief that e-cigarettes are less harmful”—not because they aren’t (I’m no doctor—jury’s still out on that one), but because making health claims and advertising to children can raise a lot of regulatory issues for these companies.

So let’s back up a minute. What is it that we offer to e-cigarette companies, and why?

E-cigarette companies use our new Content Monitoring service—something we’re thrilled about, as we think we can really help them improve their monitoring and self-regulation. This service, like our Paid Search Monitoring, is designed to help assure affiliate, partner, and publisher compliance. But, unlike Paid Search Monitoring, which finds improper ads on search engines, this service is specifically targeted at the content on publisher websites—be they endorsements, review sites, or other content-driven advertising platforms.

As Mickle writes in the WSJ, at the moment, e-cigarettes are much more loosely regulated by both the FTC and the FDA than traditional cigarettes. That said, A) they are regulated, especially by the FTC, which is, in general, very concerned about any possible “health claims” in advertising—ie. “healthier than traditional cigarettes;” “non-addictive,” or “quit smoking”—as well as advertising to children. And B) it seems like the FDA is looking to increasingly regulate the industry, taking the first steps toward doing so this past April by specifically zeroing in on sales of e-cigarettes to minors. Many companies are interested in being one step ahead of both the FTC and the FDA so that if new regulations do come down, they will already be in compliance.

That’s where we come in!

As is true in all kinds of performance marketing, companies are responsible for the claims their affiliates or publishers make. Our new Content Monitoring service can (among other things) scan known websites for forbidden copy—such as “healthy alternative” or “no carcinogens”, detect whether a site is lacking in proper affiliate disclosure language, and discover previously unknown websites that may have forbidden copy. One of the big issues in this space is that it is constantly changing. The FTC or FDA can change regulations. Laws regarding sales to minors vary from state to state. Furthermore, doctors are in an ongoing debate about both the potential health risks (addiction) and possible benefits (ability to quit traditional cigarettes more easily) of using e-cigarettes. These frequent changes make it very easy for publishers to find themselves unintentionally out of compliance and make it even more essential that e-cigarette companies know who is promoting their brand, where they are promoting it, and how they are promoting it. We can help do that.

Given the content of the survey and its coverage in national news sources, I think it is likely we’ll see both the FTC and the FDA taking an even bigger interest in e-cigarette companies. You can understand how they might be uncomfortable with the idea that kids think they’re safe and that doctors are saying they help curb addiction (even if true). The science, unfortunately, just isn’t there yet. And until it is, e-cigarette companies need to stay safe rather than sorry. That means they can’t make claims regarding their safety or ability to curb cigarette addiction and should steer clear of marketing to children, both on their own and on any publishers’ sites.

If you’re an e-cigarette company in search of compliance solutions, please do reach out to us at BrandVerity. Our sales team would love to show you the product and work with you to make sure it suits your needs. Also, please feel free to leave comments in the space below!

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