Sizing Up the Sampling Ban

NATO’s Tom Briant offers these answers to the most frequently asked questions about the FDA ban on free samples.

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1. What is a free sample?
The FDA defines a free sample as a tobacco product that does not cost the recipient anything. In other words, no money changes hands between the customer and the retailer.

2. Are promotions like buy two, get one free or buy one, get one free banned?
The answer is no. That is because there is an exchange of money between the customer
and the retailer in this type of promotion, so the free product is not really free. Also, FDA does not have the authority to regulate tobacco prices, and if the agency were to ban those types of promotions that would be a price regulation. Pricing is up to Congress, not FDA. Finally, in 2012 a U.S. Court of Appeals court made a ruling to address this issue and they decided that while free samples can be banned when no money exchanged hands, promotional prices do not constitute free samples and are to be allowed.

3. Are coupons banned?
Yes and no. If the coupon is for a free tobacco product with no money exchanging hands, the coupon is not allowed. However, if the coupon is $1 off of the price of a product and the price is more than $1, then the coupons are allowed because there is still an exchange of money between the customer and the retailer.

4. Are free products under loyalty or award programs banned?
No, the U.S. court decision referred to above found that loyalty programs are provided to
adults only and there is a prior exchange of money to earn points or awards to apply toward the free product at a later date thus making the product not really free.