We all agree, and CARU’s guidelines provide, that products that may pose a safety risk to children should not be marketed directly to them. When advertising includes product packaging and campaigns not aimed directly to children, the waters can get pretty muddy.
This month the Food and Drug Administration (FDA) and the Federal
Trade Commission (FTC) released a joint press release regarding 13 warning
letters issued to manufacturers, distributors, and retailers for selling
e-liquids used in e-cigarettes with labeling and/or advertising that resembled
kid-friendly food products.[1]
The “Joe Camel” marketing campaign by tobacco company R.J.
Reynolds may seem like ancient history but it was only in 1998 that 46 states
reached a settlement prohibiting direct and indirect marketing to youth and the
use of cartoons in cigarette advertising.[2]
Despite this, as recent as 2004, R.J. Reynolds was at it
again, this time aggressively marketing flavored cigarette products with
appealing names like Warm Winter Toffee, Twista Lime and Winter Mocha Mint in
media with a large youth audience.[3]
It has only been since 2009, when President Barack Obama
signed The Family Smoking Prevention and
Tobacco Control Act,[4]
that the FDA could ban candy and fruit-flavored cigarettes. Obama at the time acknowledged that he
started smoking as a teenager.
The press release noted examples of products with names such
as “One Mad Hit Juice Box,” which resembled a children’s juice box. Other flavors, such as “Vape Heads Sour Smurf
Sauce,” resembled War Heads candy, an Impact Confectioner’s brand.
CARU has also observed other e-cigarette retailers selling
products containing nicotine that sound suspiciously like popular trademarked
brands that are regularly marketed to children.
Confectioners and cereal brands can’t be happy with these comparisons—even
if these products are not advertised in children’s media.
For instance, VapeWild.com has a product called Fruit Hoops shown
with a bowl of colorful cereal behind it that looks like a branded cereal. Vaporfi sells a vape juice & e-liquid
product described as “strawberrylicious + Lemon Zest + Fruity Cereal” called
“Saturday Morning Cereal Vape Juice,” a name that invokes memories of watching
Saturday morning cartoons with a favorite bowl of cereal. The accompanying image is a bowl of colorful
cereal with fruit all around.
The FTC and FDA noted that the rise in popularity of
electronic nicotine devices (ENDS) has led to an increase in reports to poison
control centers and visits to emergency rooms of children under six who’ve had
exposure to or ingestion of e-cigarettes and liquid nicotine. In these cases, were children attracted to
product packaging with colorful images of candy, fruits and other
child-friendly snacks?
A recent report by The National Academies of Sciences, Engineering and Medicine entitled Public Health Consequences of E-Cigarettes[5] found that although e-cigarettes appear to pose less risk than regular combustible tobacco cigarettes, for youth and young adults, there is substantial evidence that e-cigarette use increases the risk of using regular cigarettes in the future. It also noted that the use of e-cigarettes results in dependence on the devices, which could be problematic because the implications of long-term effects on morbidity are not yet clear.[6]
The basis for the warning letters focus on the misbranding
of the e-cigarette products in violation of the Federal Food, Drug, and
Cosmetic Act because the labeling and/or advertising that imitates kid-friendly
foods is false and misleading.
CARU, as always, will be monitoring children’s media and the
Internet to make sure these products are not being marketed directly to
children.
[2] See
also, Camel Cigarettes: A Long History of
Targeting Kids at: https://www.tobaccofreekids.org/microsites/camel/Camel_History.pdf
[3] Id.
at 2.
[5]
See report, Public Consequences of
E-Cigarettes, Consensus Study Report by The National Academies of Sciences,
Engineering and Medicine January 2018 at: http://nationalacademies.org/hmd/Reports/2018/public-health-consequences-of-e-cigarettes.aspx
[6] The
National Academies of Sciences, Engineering and Medicine, supra.