What are you smoking??? Laws and rules on tobacco, marijuana and e-cigarette ads
Can my station run an ad for a store named “The Cigaret Shopper”? This is probably a violation of federal law. The very name of this store promotes cigarettes, and the name cannot be left out of ads because of the FCC’s rule on sponsorship identification. Governing federal statutes concerning tobacco advertising are the Cigarette Labeling and Advertising Act of 1970 (amended 1973) and the Comprehensive Smokeless Tobacco Health Education Act of 1986. See this BroadcastLawBlog advisory for more details. Trying to wiggle around the ban on cigarette advertising by leaving out the name of the store is a violation of the FCC’s sponsor identification rule.
So what can and can’t be advertised? It is permissible to advertise cigars, pipe tobacco, and smoking accessories such as lighters and rolling papers. The advertising of cigarettes, little cigars, and smokeless tobacco, such as chewing tobacco and snuff, is prohibited.
United States Code Title 15, Chapter 36, § 1335: Unlawful advertisements on medium of electronic communication. After January 1, 1971, it shall be unlawful to advertise cigarettes and little cigars on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission.
The Comprehensive Smokeless Tobacco Health Education Act of 1986 extended the broadcast advertising ban to smokeless tobacco products.
What about advertising “e-cigarettes,” electronic or vapor cigarettes? A qualified yes, for now, according to this legal advisory from Pillsbury (scroll to the bottom). The federal government is under pressure to regulate e-cigarettes out of concern that they are becoming a “gateway” drug for children and teenagers. This area of law could change rapidly.
The Food and Drug Administration has issued the following requirements for e-cigarette packages and advertising:
Must comply by Aug. 10, 2018
Format and Display Requirements for Required Warning Statements on Advertisements
Advertisements include print advertisements and other advertisements with a visual component (including, for example, advertisements on signs, shelf-talkers, Web pages, and email). The required warning statement on advertisements must:
- Appear on the upper portion of the advertisement within the trim area;
- Occupy at least 20 percent of the area of the advertisement (warning area);
- Be printed in at least 12-point font size and ensure that the required warning statement occupies the greatest possible proportion of the warning area set aside for the required warning statement;
- Be printed in conspicuous and legible Helvetica bold or Arial bold type or other similar sans serif fonts and in black text on a white background or white text on a black background in a manner that contrasts by typography, layout, or color, with all other printed material on the advertisement;
- Be capitalized and punctuated;
- Be centered in the warning area in which the text is required to be printed and positioned such that the text of the required warning statement and the other textual information in the advertisement have the same orientation; and
- Be surrounded by a rectangular border that is the same color as the text of the required warning statement and that is not less than 3 millimeters (mm) or more than 4 mm.
“WARNING: This product contains nicotine. Nicotine is an addictive chemical.“
What about advertising marijuana? While it has been legalized in some states for medicinal or recreational use, marijuana is still an illegal substance in the eyes of the federal government. And, since broadcasters are federal licensees, it’s probably not a wise idea to become the “test case” for resolving the conflict between federal and state law. See this law blog entry for more details. The same advice applies to CBD oil.
Disclaimer: This website is intended to provide general guidance only. Stations should consult with their own legal counsel regarding the facts and circumstances of a particular advertising question or issue.