The start date for the FDA’s new warnings requirement for cigar ads and labels, set to go into effect on August 10, has been delayed. Earlier this month, a federal judge issued an injunction that temporarily prohibits the FDA from enforcing its new warnings requirement on cigar and pipe tobacco products.
What does this mean for TV stations, or for radio stations that boast these sorts of ads online? Washington law firm Wiley Rein shares its thoughts.
The warnings requirement mandates that cigar advertisements contain one of six warning statements. Once effective, all cigar advertisements, regardless of the medium in which they appear, must carry a warning.
Television, social media, and other advertisements with a “visual component” must ensure that the warning appears on “at least 20% of the area of the advertisement” and that it is printed in 12-point (or larger) font in either Helvetica and Arial typeface.
In addition, the warning must be in English, unless the advertisement appears in a non-English language publication, in which case the warning should appear in the primary language used in the publication.
The new warnings requirement will not affect the federal ban on broadcast advertisements for cigarettes, little cigars, and smokeless (chewing) tobacco.
The injunction stems from a case brought before the United States District Court for the District of Columbia in which Plaintiffs, including the Cigar Association of America, challenged aspects of a new FDA rule – known as the “Deeming Rule” – that subjects cigars and pipe tobacco to statutory and regulatory requirements similar to those already imposed on cigarettes and other tobacco products. Plaintiffs argued that the Deeming Rule violates the Tobacco Control Act, the Administrative Procedure Act, and the U.S. Constitution. The District Court disagreed, finding in favor of the FDA. Plaintiffs appealed and the District Court issued an injunction pending appeal effective until 60 days after final disposition of Plaintiff’s appeal by the appellate court.
Although the warnings requirement will not apply to broadcasters directly, broadcasters should be aware of it in order to assist their clients’ compliance efforts.