It’s not uncommon in today’s regulatory landscape to hear that the U.S. Food and Drug Administration (FDA) has sent a warning letter to a retailer or manufacturer over concerns about certain covered tobacco products being sold, distributed or promoted. Now, however, the federal government appears to be going beyond manufacturers and retailers as it begins to scrutinize social media influencers in its regulatory review process.
It has been reported that the Federal Trade Commission (FTC) and the U.S. Food and Drug Administration (FDA) has begun to send warning letters to some manufacturers that work with social media influencers over concerns about influencers not disclosing the true nature of their relationships with vape and e-liquid manufacturers. The FTC and FDA are also informing these alleged offenders that like manufacturers, even these influencers must post warnings about the safety risks of some products.
In one warning letter. the FDA states that it has reviewed the Instagram account of a user that contained posts that contained labeling and/or advertising for several e-liquid products on behalf of the company. The warning letter goes on to state that these e-liquid products are considered tobacco products because they are made or derived from tobacco and intended for human consumption, as described in section 201(rr) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C.§ 321(rr)), as amended by the Family Smoking Prevention and Tobacco Control Act. It goes on to state how e-liquids are part of the covered tobacco products that are now subject to FDA regulation and that the FTC has the right to review social media postings for these products granted to it under section 5 of the FTC Act, 15 U.S.C. § 45.