Advertising "Around" Cigarettes, Electronic And Otherwise

I've written about cigarette advertising before, but for some reason the issue has been popping up quite a bit recently. In fact, I've had a run on cigarette and tobacco-related advertising questions even this week. In light of the frequency of these new inquiries, it would seem to be a good idea to review this area. So here's a rundown:

In short, you cannot advertise anything that has the word "cigarette" in the ad or the name of the advertising establishment.

Here's a little more detail:

Section 6 of the Federal Cigarette Labeling and Advertising Act makes it unlawful to advertise cigarettes and little cigars on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission. The prohibition has also been extended to smokeless and chewing tobacco.

But here's the question: The law does not ban the advertising of smoking accessories, cigars, pipes, pipe tobacco or cigarette-making machines. The question is often posed whether the station can take advertising or an announcer can voice an ad where the merchant's name contains the word "cigarette," but the ad is clearly for a product other than one on the prohibited list. Or, since the statute bans the advertising of "cigarettes" but does not mention "tobacco" other than as part of the definition of cigarettes, can that word be used?

It is difficult to respond because this is really not an FCC issue. The Federal Cigarette Labeling and Advertising Act is a criminal statute -- and jurisdiction belongs to the Department of Justice, which has the exclusive authority to enforce the legal ban. Determinations on the applicability of the section are within its prosecutorial discretion. It is for the Department of Justice, and ultimately the courts, to decide whether the presentation of such advertisements would be prohibited. It has been reported that an FCC Commissioner's legal advisor has advised that the Federal Trade Commission has a rule against any advertisement that uses the word "cigarette," although I have been unable to find that rule.

Justice Department officials have repeatedly declined to offer advice on advertisements with "cigarette" in the name of the advertiser. Although that was a while ago, it's the answer the last time I checked with the Justice Department. There are no cases to guide us. The answer, therefore, is unclear. Many broadcasters have accepted such advertising and there have been no adverse consequences, so a good case can be made that the advertisement of a "tobacco rolling contest," or even a tobacco rolling machine or "waterpipes" is outside the statute and therefore not proscribed. But the possibility does exist so, at the very least, it would be prudent to avoid any reference to the prohibited products, and a broadcast station must be advised that it is taking a risk by accepting and running such an ad.

Electronic Smokes

Recently, stations have been approached by makers of electronic cigarettes looking to advertise. They argue since they do not burn tobacco they are legal. Here again, a technical case can probably be made that this product is outside the statute since it is not made from a roll of tobacco wrapped in paper, as "cigarette" is defined in the statute.

Broadcasters should note that the FCC and the Department of Justice are not the only government agencies to be concerned with electronic cigarettes. Late last year, the Food and Drug Administration announced that it had taken enforcement action against five electronic cigarette companies for violations of the Federal Food, Drug and Cosmetic Act, including unsubstantiated claims and poor manufacturing practices. The FDA also sent a letter to the Electronic Cigarette Association stating that the agency intends to regulate electronic cigarettes and related products in a manner consistent with its mission of protecting the public health.

In earlier statements, the FDA had issued health warnings about this product, noting that public health experts have expressed concern that electronic cigarettes could increase nicotine addiction and tobacco use in young people and that the FDA's analyses detected diethylene glycol, a chemical used in antifreeze that is toxic to humans. In several other samples, the FDA analyses detected levels of known carcinogens, including nitrosamines and toxic chemicals,to which users could potentially be exposed.

Given these discoveries, it is questionable whether advertising electronic cigarettes would be considered a good advertising practice even if it could be determined that the Federal Cigarette Labeling and Advertising Act was not applicable to them.

So, while the possibility does exist that some of the other types of products could be advertised, a broadcaster has to ask whether such ads and their revenue would be worth it, and whether the potential legal costs of mounting a defense are justified. Under any circumstances, of course, it would be prudent to avoid any reference to the prohibited products and a broadcast station must be advised that, with this risk, it is best to consult station counsel first.

Cigarette and Tobacco Advertising Redux

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.