HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, June 18, 2014

Guest Blogger Professor Seema Mohapatra: E-Cigs and Advertising

MohapatraJoe Camel All Over Again! E-cigarette Advertising Regulations Needed

A recent advertising campaign for MarkTen e-cigarettes declared “Let it Glow,” which seems to channel the uber-popular Disney movie Frozen.  E-cigarettes are turning out to be the next big thing—and it seems that the lessons of Big Tobacco have not necessarily been learned, especially with regards to advertising.   E-cigarettes are the battery-operated, heat-producing mechanisms that mimic the appearance of a “real” cigarette, functioning as a nicotine delivery system, without the need for burning tobacco.[1]  Thus, these devices give a similar nicotine intake or “hit” and sensation as a regular cigarette, but supposedly do not deliver many of the harmful carcinogens that are packaged with burning tobacco.[2]   E-cigarettes are vaped, rather than smoked. Seen by some as a possible healthier alternative to cigarettes and a way to help smokers quit, public health advocates worry that they could be a new way to become addicted to nicotine and a first step to cigarette smoking. Some warn that the safety aspects of e-cigarettes are still not certain, and more studies are needed to address the addictive nature of nicotine itself, and the harms that could be caused by other carcinogens found in the e-cigarette vapor.  Certain studies indicate that the liquids used in e-cigarettes could be linked to poisonings, and the CDC has also recently reported that there has been what they called a “dramatic” rise in e-cigarette-related calls to U.S. poison centers.[3]

Increase in Advertising – and the Product as a Smoking Cessation Aid

There has been a dramatic increase in the amount of advertising for e-cigarettes, in all forms of media.  For example, in the United Kingdom, one ad ended with the message “experience the breakthrough,” and features a man and woman passing through smoke, with a voiceover calling the experience “pure satisfaction.”[4]  Although the manufacturer claimed that this message advertises the product as a smoking cessation device, the Advertising Standards Authority (“ASA”) thought otherwise  and banned the advertisement.   The ASA stated that the language was likely to be interpreted as “[a] breakthrough alternative as a substitute for tobacco,” and “[i]n this context, the product was likely to be understood as a smoking cessation aid.”[5]   At least one study has supported this theory,[6] finding that e-cigarettes did not help people quit, and concluding that “e-cigarettes as a cessation tool is flimsy at best,” indicating a need for more research.[7]

In the United States, advertising for e-cigarettes has been left unregulated by the Federal Trade Commission, in direct contrast to advertising for cigarettes.  Several senators[8] oppose the widespread use and advertising of e-cigarettes, and asked the FTC to investigate the claims manufacturers are using in their advertising, saying, among other things, that there is a need to immediately address the “false and deceptive claims” by the manufacturers.[9]

Advertising that Seemingly Targets Youths & Its Implications


Not only is the advertising potentially misleading in nature, there seems to be a targeted effort at marketing to a younger population.  Commercials promoting e-cigarettes have increased, and new research shows that the young audience viewing these ads has tripled over recent years, being shown to approximately 24 million viewers between the ages of 12 and 24.[10]  For example, a study provided by the Nielsen, the leading collector of TV advertising data, tracked all e-cigarette ads on more than 100 networks and across over 200 different markets from 2011 to 2013. The study found that the number of kids between 12 and 17 exposed to e-cigarette advertising increased over 250 percent, and young adults between 18 and 24 increased more than 320 percent. This was attributed to the fact that approximately 75 percent of the ads were airing on channels and networks popular with young people, “including Comedy Central, TV Land, WGN America, VH1, Country Music Television and AMC.”[11]  More specifically, researchers state that the advertising was slotted during the top rated shows, including “The Bachelor,” “Big Brother,” and “Survivor.”[12]

Additional studies demonstrate that although the electronic cigarettes may be marketed as alternatives to tobacco, trying e-cigarettes at all increased the chances that a teenager would try conventional tobacco cigarettes and become regular smokers.[13]  Kids that said they had tried an e-cigarettes were six times more likely to try tobacco than those who did not, and the percentage of middle school and high school students who have tried e-cigarettes doubled from 3.3% in 2011 to 6.8% in 2012. Additionally, teenagers who smoked tobacco cigarettes were more likely to use e-cigarettes, and vice versa.

Although conventional cigarette manufacturers generally deny that they intentionally market to teenagers and young adults, researchers state that the makers vigorously market “glamorous and sexy images that appeal to a teenager’s sense of rebellion” and to their propensity for risk-taking conduct.[14]  Tobacco control advocates say that these same tactics are being used for e-cigarette ads. Additionally, the e-cigarettes come in a wide variety of flavors that seem to target the younger population – like strawberry, watermelon, and licorice. However, currently, the sale and advertising for e-cigarettes is not regulated like conventional cigarettes.[15]

Government Support and FDA regulations

In April, the FDA proposed new rules that would contribute to the regulation of e-cigarettes.[16]  These rules were supported by the American Medical Association (“AMA”), which backs stricter limits on the sale and marketing processes employed by the manufacturers of electronic cigarettes.[17] Additionally, the AMA supports the prohibition of unfounded claims that the products are smoking cessation tools, and further suggests the implementation of child-proof packaging alternatives, more informed product labelling, and restrictions on the flavored nicotine that appeals to kids. The FDA’s proposed rules do not seem to go far enough to protect us from misleading and misdirected advertising by e-cigarette manufacturers. Although dozens of states have begun to regulate e-cigarettes, there is no uniform rule or application across jurisdictions.[18]  Currently, less than two dozen states restrict sales to youths, only a handful have banned e-cigarettes in public places, and only one state, Minnesota, taxes e-cigarettes.

With R.J. Reynolds, the creators of Joe Camel, entering the e-cigarette market soon with their brand Fuse, we can expect amped-up marketing to be aimed at young people.  To date, smokers have not embraced vaping as a smoking alternative.  However, it appears that Big Tobacco is banking on vaping bringing in new smokers.  After decades of public health efforts to protect children from nicotine, federal regulations restricting e-cigarette advertisements is needed.   Unless there is a legislative or administrative push to prevent marketing to children, e-cigarettes may become the gateway to cigarettes for children and teenagers.


[1] E-Cigarette Advertising Soars on American TV, Study Finds Youthful Audience Exposed to Pitches for the Nicotine Product has Tripled in Recent Years, Health Day News, June 2, 2014. Available here

[2] Kate Kelland, E-Cigarettes Mostly Used by Young Smokers, Would-be Quitters, Reuters, June 16, 2014. Available here

[3] Alexandra Sifferlin, 5 Sketchy Things We Still Don’t Know About E-Cigarettes, Time Mag., April 24, 2014. Available here. 

[4] Mark Sweney, Let It Glow, E-Cigarette Marketing, and Public Health, The Guardian, June 11, 2014. Available here.

[5] Id.

[6] Id. citing (published in the journal JAMA Internal Medicine looked at self-reports from 949 smokers–88 of whom used e-cigarettes at the start of the study–in order to determine if e-cigarettes were helping people kick or cut back on nicotine).

[7] See Sifferlin, supra note 3.

[8] U.S. Senators Tom Harkin (D-IA), Barbara Boxer (D-CA), Richard Blumenthal (D-CT), Dick Durbin (D-IL), Edward J. Markey (D-MA), and Sherrod Brown (D-OH)

[9] Harkin, Senate Democrats Call On FTC and FDA To Protect Consumers From False Advertising Claims By E-Cigarette Makers, April 7, 2014. Available here.

[10] See E-Cigarette Advertising Soars on American TV, supra note 1.

[11] Id.

[12] Alexandra Sifferlin, E-Cig Ads Luring Teens and Young Adults Jumps 321%, Time Mag., June 2, 2014. Available here.

[13] Patti Neighmond, Teens Who Try E-Cigarettes Are More Likely To Try Tobacco, Too, NPR, March 6, 2014. Available here.

[14] Id.

[15] Alexandra Sifferlin, E-Cig Ads Luring Teens and Young Adults Jumps 321%, Time Mag., June 2, 2014. Available here.

[16] Extending Authorities to Additional Tobacco Products, FDA (“Currently FDA regulates cigarettes, cigarette tobacco, roll-your-own tobacco and smokeless tobacco. Proposed newly “deemed” products would include electronic cigarettes, cigars, pipe tobacco, certain dissolvables that are not “smokeless tobacco,” gels, and waterpipe tobacco. Once the proposed rule becomes final, the FDA will be able to use powerful regulatory tools, such as age restrictions and rigorous scientific review of new tobacco products and claims to reduce tobacco-related disease and death.”)

[17] Toni Clarke, FDA Aims to Develop E-cigarette Standards, Nicotine Policy, Reuters, June 12, 2014. Available here.

[18] Brady Dennis, Booming E-cigarette Market in Need of Greater Oversight, Studies Say, The Washington Post, June 16, 2014. Available here.

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