The FTC and the FDA have jointly issued warning letters to several manufacturers, distributors, and retailers of the tobacco product, e-liquid, which is used in e-cigarettes. The products at issue have labels and/or ads that resemble kid-friendly food products, such as juice boxes, candies, or cookies. Several of the companies receiving warning letters also were cited for illegally selling the products to minors.
In late 2017, the FDA started its investigation of tobacco product labeling and advertising that makes the tobacco products imitate food products, particularly those that are marketed toward, or appealing to, children. The products noted in the warning letters are considered misbranded in violation of the Federal Food, Drug, and Cosmetic Act because their labeling and/or advertising imitating kid-friendly foods is false or misleading.
The FTC joined the warning letters under Section 5 of the FTC Act, which prohibits unfair or deceptive marketing practices, including practices that present unwarranted health or safety risks. The products at issue are marketed in packaging that resembles foods and drinks popular with young children, and have scents similar to the juice, cookies, or candies the packages mimic. Given the serious child poisonings due to ingestion of liquid nicotine, the FTC said that marketing these products in packaging that is likely to be particularly appealing to young children could present an unwarranted risk to health or safety. The FTC's press release notes that "children are at greater risk because exposure to the nicotine in the e-liquid product, even in relatively small amounts, could result in acute toxicity....[with a risk of] death from cardiac and respiratory arrest seizure, and coma."
The letters require a response within 15 business days. While it remains to be seen what steps the regulatory agencies will take next, enforcement action often follows from the issuance of warning letters. As the FTC notes in the warning letters, "preventing practices that present unwarranted health and safety risks, particularly to children, is one of the Commission's highest priorities."
Some examples of the products outlined in the warning letters, and being sold through multiple online retailers, include: "One Mad Hit Juice Box," which resembles children's apple juice boxes, such as Tree Top-brand 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. Other products include "Whip'd Strawberry," which resembles Reddi-wip dairy whipped topping, and "Twirly Pop," which not only resembles a Unicorn Pop lollipop but is shipped with one.
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