FDA: Kid-Friendly E-Cigarette Products Off the Market

Advertising Law

Following the issuance of 17 warning letters to the makers of e-cigarette and vaping liquids that resembled brands targeting children, the Food and Drug Administration announced the products are now off the market.

In May, the agency sent letters (13 in conjunction with the Federal Trade Commission) to the manufacturers of products such as “Whip’d,” which looked like Reddi-wip topping; “Twirly Pops,” resembling a Unicorn Pop lollipop; and “V’Nilla Cookies & Milk,” an imitation of Nabisco’s Nilla Wafers. The packaging was intentionally designed to mimic child-friendly items, in violation of the Food, Drug and Cosmetic Act and Section 5 of the Federal Trade Commission Act, the regulators said.

For example, the packaging for “One Mad Hit Juice Box” closely resembled Tree Top-brand juice boxes, complete with a replica of a traditional juice box’s Nutrition Facts label, as well as statements such as “Juice Box,” “A Juicebox a Day Keeps the Doctor Away” and “Serving Size: 1 bottle.”

The box was manufactured with folded-over sealed top corners identical to the way juice boxes are sold, and featured the image of a straw wrapped in clear plastic affixed to the side of the packaging. In addition, the product featured a strong scent of apple juice, and the advertising used a color scheme “substantially similar” to Tree Top’s juice boxes, complete with images of apples and apple trees.

“Children are at particular risk for ingesting e-liquid products with labeling and/or advertising that causes the product to imitate a food or beverage, particularly a food or beverage that is typically marketed toward, and/or appealing to, children,” the FDA and FTC wrote in the letters.

In response to the letters, every product on the list was removed from the market. However, the FDA acknowledged in a statement that it expects that some of the companies may continue to sell their products with revised labeling to address the concerns set forth in the warning letters. Both agencies plan to continue monitoring tobacco product labeling and advertising for potential violations of the law.

“The fact that these companies have stopped their dangerous and deceptive tactics to attract kids to their vaping products is a timely, positive and appropriate action,” FTC Chair Joe Simons said in a statement. “The FTC’s message is direct and consistent: We are watching, and we will take action immediately when deception places kids at risk.”

To read the warning letters and view a comparison of the e-liquid and vaping products to the child-friendly products, click here.

To read the FDA’s announcement, click here.

Why it matters: “Removing these products from the market was a critical step toward protecting our kids,” FDA Commissioner Scott Gottlieb, M.D., said in a statement. “Even as we encourage the innovation of novel and potentially less harmful products such as e-cigarettes for currently addicted adult smokers, we’re committing to holding industry accountable to ensure these products aren’t being marketed to, sold to, or used by kids.” Dr. Gottlieb also cautioned retailers that their turn is coming as the agency continues efforts to enforce its Youth Tobacco Prevention Plan. The FDA expects “to take additional, robust enforcement actions over the next few months that target those who we believe are allowing these products to get into the hands of children,” he said.