Last month I participated in a webinar with my colleague Dan Kirkpatrick where we addressed the issue of advertising controversial products. While the topic of marijuana advertising (which we discussed in our webinar) gets much attention these days–especially with the recent decision by CBS to turn down a cannabis ad for the Super Bowl–we also examined the advertising of e-cigarettes and nicotine vaping products.

Federal law does not currently prohibit advertisements for e-cigarettes or vaping products (as it does for tobacco cigarettes), although many broadcasters have been cautiously expecting the other shoe to drop. For now, the US Food & Drug Administration (“FDA”) only requires general disclosures that “e-cigarettes contain nicotine and that nicotine is an addictive chemical” and prohibits e-cigarette and vaping ads from making claims that they are healthier than cigarettes or that they help users quit cigarette smoking. (As a reminder, both the FDA and the Federal Trade Commission (“FTC”) regulate any false or unsupported medical claims in advertising). The FDA has been extremely aggressive in cracking down on e-cigarette and vaping ads that are perceived as targeting children and has issued this warning: unless advertisers can prove that they are not targeting minors, they may be forced off the market. This was seen in the FDA’s crackdown against the manufacturer Juul last year and the announced ban on flavored e-cigarettes. Juul’s marketing campaigns used young models and appeared to target teens, which the FDA claimed led to a rise of teen “juuling.” Some states have taken action as well, with the drafting of legislation that would ban or limit online sales of vaping products in their states.

Broadcasters should be very careful when considering whether to accept e-cigarette or vaping ads, especially on stations having a high percentage of minors or teens in their audience. The FDA has threatened to review the promotional activities of the e-cigarette and vaping industries to evaluate compliance with the law. And just last month, FDA Commissioner Gottlieb threatened e-cigarette companies, saying they face an “existential threat” if they don’t stop marketing to youth. Despite this, the American Lung Association recently gave the FDA an “F” grade for failing to take sufficient action to protect children from e-cigarettes. Whether this leads to further action by the FDA is uncertain, but it should at least continue to turn public opinion against e-cigarette advertising.

In any event, broadcasters should proceed cautiously and are urged to view the voluntary alcohol industry guidelines as a guidepost. Also, watch state and federal activity and consult with your FCC counsel and state broadcast association.