In recent months, there have been many calls to regulate e-cigs, and potentially to regulate the marketing of all sorts of vaping products, including a call last week by Democratic FCC Commissioner Jessica Rosenworcel in an op-ed article in USA Today.
As Wilkinson Barker Knauer partner David Oxenford notes in this column, these suggestions have been based “in the fear that increased promotion of vaping products have led to an increase in tobacco use among children.”
He argues, “While the FDA has been taking efforts to crack down on flavored vaping products to reduce their appeal to kids, the makers of e-cigs still advertise, including on radio and TV. Those advertisements bring us frequent questions about whether the FCC has rules about advertising these products. So far, the FCC has had no real role in regulating these products. In fact, one wonders if it really has any authority to take action against the advertising of e-cigs without Congressional action.”
By David Oxenford
So far, all the limits on e-cig advertising have been imposed by other agencies – principally, the FDA. The FDA requires a tag on all vaping ads, stating that these products contain nicotine, which is an addictive substance. And these ads should not claim health benefits for vaping. Given the FDA’s concern about children, any ads should also stay out of programming with a large audience of children.
Could the FCC itself do more?
It is worth looking at the restrictions on other vices to get an idea of the FCC’s role. Cigarette ads were not banned by the FCC itself, but instead by an act of Congress in the 1960s. Prior to the ban, there had been some FCC attempts to discourage cigarette ads – but that had not been done through a ban on the smoking ads, but instead through the use of the Fairness Doctrine, which was then still in existence.
Before the Congressional ban, there were a string of FCC cases where the question was raised as to whether cigarette ads were themselves a controversial issue of public importance that required that broadcast stations provide free time to smoking critics to respond to the ads. Because the Fairness Doctrine has been abolished by the FCC as being an unconstitutional infringement on broadcaster’s speech, that route does not appear open to the FCC in discouraging e-cig ads.
Ads for other vices are similarly not regulated by the FCC. Alcohol ads are handled principally by industry association guidelines (developed by the Distilled Spirits Council, or DISCUS, and the Beer Institute) that voluntarily keep ads out of programming directed to children, or where children make up a significant percentage of the listening or viewing audience (for fear of statutory intervention or the FTC finding that the ads are unfair trade practices). In fact, even though there is some hard liquor advertising on broadcast stations, it has generally been limited. The FCC does not prohibit it, but every now and then, when the number of ads increases, there are calls for Congress to act, and the industry takes action so that the number of ads seemingly decreases again.
We’ve written about the cautions associated with marijuana advertising – where issues arise not because of FCC action, but because marijuana possession and distribution is still a crime under federal law. Given the illegal nature of the product under Federal law, stations have for the most part stayed away from advertising a product which, though possibly legal under individual state laws, is still a potential felony under federal law. The FCC can act against a station that has violated the law in other areas, and can even take action where there has been no conviction if the conduct is very serious. Because of the fear of prosecution under federal criminal statutes, and the potential impact of any such prosecution on a station’s license, most stations have stayed away from taking marijuana ads. The FCC itself has not banned marijuana ads, but other government agencies could be seen as making running those ads subject to prosecution, and the prosecution could have an impact on the FCC license.
We will soon write about CBD products, where promotion of the product has similarly been a concern, to the extent that it is illegal under federal law. Because of this, CBDs have for the most part, up to now, been subject to the same cautions as marijuana ads.
Gambling too was once a forbidden subject for advertisements – though again because of a statute that banned advertising for lotteries and other games of chance, not because of rules adopted by the FCC without a prior Congressional mandate. But even these rules disappeared when the courts determined that such statutory bans violate the First Amendment – two decades ago for casino gambling, and more recently for sports betting.
A few years ago, there were even suggestions that there should be regulation of unhealthy foods and the advertising of those foods. There, too, most of the action occurred in Congress, not at the FCC – and even when Congress did pressure the FCC to act, it was through the guise of more expansive interpretations of existing Congressional mandates on the regulation of advertising in children’s television programs.
While the FCC does regulate broadcasters by requiring that they operate in the public interest, that mandate is limited by the First Amendment. In fact, there is even a section of the Communications Act that forbids the FCC from censoring content. Banning ads for a legal product is unlikely to be something that the FCC, on its own, can do. As the lottery and gambling cases show, even Congressional ad bans are constitutionally problematic. So, while Congress can potentially take action prohibiting ads for e-cigs and other vaping products, we would not expect FCC action on its own without a substantial change in the Republican-majority FCC, and a risk of court challenge.
Ads for these products can be controversial and in some cases subject to state law limitations. There also can be limits established not by the government, but in programming contracts. And, since there are no clear FCC rules on these topics, you need to be aware of the specific guidelines imposed by other government agencies, which we have only touched on in this article. So it always a good idea to check with your own counsel about running ads for any of these vices.