Advertising Law Blog

Examples of the products addressed in these letters include “One Mad Hit Juice Box,” which resembles children’s apple juice boxes; “Vape Heads Sour Smurf Sauce,” which resembles War Heads candy; and “V'Nilla Cookies & Milk,” which resembles Nilla Wafer and Golden Oreo cookies.

The FTC asserted that marketing these e-liquids in a way that may be appealing to children could present a substantial risk of children’s health and safety. The FTC further highlighted its desire to protect children from nicotine, stating that “marketing methods that put kids at risk of nicotine poisoning are unacceptable.”

Recently, the FDA issued an additional warning letter to Electric Lotus, LLC, cautioning against the sale of e-liquids used in e-cigarettes in a manner that resembles “kid-friendly foods.” The FDA cited certain e-liquid products sold by Electric Lotus, such as “Cereal Treats Crunch” resembling “Cinnamon Toast Crunch,” “Cereal Treats Charms” resembling “Lucky Charms,” and “Cereal Treats Krispies” resembling “Rice Krispies Treats.”

In its warning letter to Electric Lotus, the FDA determined that Electric Lotus manufactures, sells, and/or distributes its e-liquid products in the United States without a marketing authorization order, misbrands the products, and uses false or misleading labeling and/or advertising to imitate food products and appeal to children. The FDA stated in the letter that Electric Lotus should immediately correct these violations, and submit a written response within 15 working days from the date of receipt.

Takeaway: The growing popularity of e-cigarettes particularly amongst children and teenagers has clearly attracted the attention of federal regulators.  These warning letters, as well as other related enforcement efforts, demonstrate that regulators are continuing to monitor the directed marketing and promotion of such products. The next step for regulators, however, remains to be seen. Some commentators have even suggested that the FDA may ban flavored e-liquids all together. What is clear, however, is that the targeting of any tobacco products, electronic or otherwise, to underage and young consumers appears to be an issue of pertinence to the FDA and FTC alike.