Although e-cigarettes were initially introduced as a less harmful alternative to traditional tobacco products, and meant to be a way for smokers to slowly decrease their consumption of nicotine, the marketing tactics used to advertise these products have recently come under scrutiny.  E-cigarette companies such as Juul Labs, Inc. and Philip Morris have come under fire for releasing advertising campaigns which inadvertently targeted children, and have led to more than 3.6 million middle and high school students becoming e-cigarette users in the year of 2018 according to a finding reported by the National Youth Tobacco SurveyDespite the ban that has been placed on advertising campaigns which attempt to sell nicotine products to minors, companies have attempted to sidestep this ban by using influencer-based marketing. Influencer based marketing involves marketing ones products by using an “influencer,” or person on a popular social media platform who has a lot of followers, to endorse the nicotine product.  The problem with this type of marketing is that the consumers of this type of marketing are primarily minors, who are being bombarded by ads endorsing nicotine use. 

Influencer Marketing

The type of marketing that is used on online platforms such as Instagram or Twitter can be difficult to regulate—it often flies under the radar, and because the platforms themselves do not exist for a long time, it can be difficult to track effectively.  In the case of e-cigarettes, companies were paying “influencers,” or people with a broad network of online followers, to promote their products. This type of marketing proved subtle, as influencers posed their photos in natural ways which did not read to the casual viewer as being an advertisement. One of the more notable instances of this type of marketing was the early social media campaign for Juul vaping products—the Juul company made use of influencers and hashtags to market their product, and as a result, minors began using their products and sharing videos of themselves vaping on various social media platforms.  As a response to this drastic increase in nicotine use among minors, lawsuits began to be filed against tobacco companies, and these companies were then forced to air court mandated anti-smoking statements on primetime television and in newspaper ads. This response was ineffective, primarily because the children who were using nicotine products were not reading newspapers or watching primetime television—they were instead on social media platforms like Facebook or Instagram. 

Government Response

The government’s response to the marketing of nicotine products to children has been relatively swift and comprehensive. The FTC, for instance, has mentioned having a strong case against the tobacco companies, and has been going after influencers for non-disclosure regarding the marketing of nicotine products.  Additionally, the FDA has required leading tobacco company Philip Morris to provide them with a detailed analysis of the age range that they were targeting in their online marketing campaign before they were permitted to release their new vaping product, “IQOS.” Even more drastic than this, the FDA has required tobacco giant Philip Morris to turn their social media marketing efforts over to the FDA for review 30 days before their launch.   The FDA has also gone a step further in their efforts to curb this illicit marketing by cracking down on influencers for non-disclosure.

Path to Improvement

Nicotine companies have reached a critical stage at which they must address the inappropriate promotion of their products, and start investigating how best to correct this problem in the future.  The most immediate issue that they must address is how best to respond to the FDA, and it seems that the only course of action in this case is to terminate their current relationships with underage or seemingly underage influencers.  They then must begin the process of writing out their responses to the FDA, as well as investigating how these influencers made their way into the advertising process in the first place. Next, nicotine manufacturers must implement a comprehensive remedial plan which might entail setting up a compliance department, or a promotional review committee, to make sure that their advertising campaigns are reaching an appropriately-aged target audience.  These nicotine products do have potential to help people transition from smoking to a less harmful alternative, however, nicotine companies must first figure out how best to appropriately market and target these products so that they are reaching adults, and not children.

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The opinions stated in this blog are the sole and present opinions of the blogger and do not necessarily represent the opinions of the Kulkarni Law Firm, PC and/or its attorneys. Such opinion(s) may change over time. Such opinion(s) should not necessarily be attributed to the institution for which these individuals may work or otherwise represent in any capacity. These blogs do not constitute legal advice and should not be construed as such.