The 9th Public FTC Meeting - Reporting on Vaping and E-Cigarettes

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BakerHostetlerThe Federal Trade Commission (FTC) has a long history of addressing issues involving cigarettes and tobacco, often in the advertising context. Indeed, one of us bloggers started at the FTC in 1998, and the first case he worked on was the agency’s litigation against R.J. Reynolds. That case alleged that the company’s use of the Joe Camel mascot in an advertising campaign was an unfair practice because it allegedly induced children and adolescents under 18 to start smoking. The Joe Camel case ended a bit unceremoniously in 1999 after the FTC moved to dismiss the matter because “the relief sought in this proceeding has now been achieved through a recent settlement between the major tobacco companies.” Among other things, the settlement marked the end of the use of “all cartoon characters, including Joe Camel, in the advertising, promotion, packaging, and labeling of any tobacco product.”

Twenty years later, in 2019, when Chairman Simons was at the helm, the FTC initiated a study regarding the advertising and marketing methods being used by various electronic cigarette companies. For decades, the agency had conducted similar studies on cigarettes and smokeless tobacco products, but as e-cigarettes took off in popularity, it was inevitable that it would also take a closer look at how those products are marketed. The latest public commission meeting focused on the results of this latest study.

For the public participation part of the event, we heard from only one member of the public, raising concerns about youth vaping and flavored products, and that was it. But one thing still confuses us nine months into this experiment with public meetings. Is the goal here to have consumers talk about the topic of the day – e-cigarette marketing and youth uptake? And if that is the case, wouldn’t it make sense to provide consumers with access to information about the report in advance of the meeting? And wouldn’t it also make sense to give consumers more than one week’s notice about the topic of these meetings? And since the commissioners have presumably spent a lot of time with the report before the meeting, what is the purpose of the purported consumer engagement here? It appears to be creating an illusion of transparency but no real actual engagement. And of course, given that the commissioners do not engage with staff and we are presented with what amounts to multiple speeches on the same topic, it’s not really giving anyone great insight into the issues or the process by which important decisions are made.

Turning to the meeting at hand, FTC staff presented the findings of the study and the commissioners made statements about the issue, but there was no back-and-forth between the commissioners and staff. But what staff said was pretty interesting and provided an aggregated overview of the e-cigarette market and the dramatic increase in sales from 2015 to 2018. There was also a dramatic shift in sales of flavored cartridges. During this period, average nicotine concentrations increased and there was also a notable growth in advertising and promotional expenditures. More information and the report are available here.

As for the commissioners, there was a good deal of unanimity and interest in the issue. Chair Khan focused on health issues and the growth of flavored cartridge products, suggesting they could be a driver of youth vaping. She also addressed concerns about the use of influencers to market e-cigarettes. Commissioner Phillips noted that the data presented is outdated but that the agency will bring out more reports soon. Commissioner Slaughter expressed her appreciation that the agency focused on this issue and followed how the market had moved. And Commissioner Wilson talked about the great work of FTC staff in this area and her personal concerns about vaping and tobacco usage.

Meeting adjourned.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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