Hunton Retail Law Resource

The FTC and the FDA jointly sent warning letters to four manufacturers of flavored e-liquid products, citing the absence of particular disclosures in paid social media endorsements as potentially in violation of the Federal Food, Drug, and Cosmetic Act and the FTC Act.

On the FDA front, the absence of a statement that “WARNING: This product contains nicotine. Nicotine is an addictive chemical” could violate federal regulations covering labeling and advertising for tobacco products. The letters go on to state that, “given the significant risk of addiction, the failure to disclose the presence of and risks associated with nicotine raises concerns that the social media postings could be unfair or likely to mislead,” potentially in violation of the FTC Act. Likewise, the agencies emphasized that the failure to clearly and conspicuously disclose any material connections between the influencers and the companies could run afoul of the FTC’s Guides Concerning Use of Endorsements and Testimonials in Advertising. The companies were instructed to take remedial action to address these concerns and report back to the FDA and FTC within 15 days of receipt.