Clubs are also permitted, although manufacturers or retailers selling club membership should not distribute free products as part of membership benefits. “For example, the ban would not prohibit the sale of membership to a club that provides a 10 percent discount on all tobacco product purchases, but a retailer could not sell membership to a club that provides free samples of tobacco products outside of tobacco product sales transactions that require payment of money,” states the guidance document.
Contests and games of chance are not prohibited under the free sample ban, but as with other promotions, contest prizes may not consist of tobacco products unless those products are distributed as part of a tobacco product sales transaction that requires monetary payment and is subject to minimum age and ID requirements. “For example, the ban does not prohibit a retailer from allowing customers to enter into a drawing or raffle and give a prize of a tobacco product discount or a coupon redeemable for a ‘free’ tobacco product at the time of another tobacco product purchase,” states the FDA, “but the retailer could not distribute a free tobacco product as a prize outside of a tobacco product sales transaction that requires monetary payment and is subject to minimum age and ID requirements.”
While contests and games of chance that do not result in the distribution of free samples of tobacco products are not prohibited by the free sample ban, tobacco manufacturers, distributors and retailers seeking to have a contest or game of chance with a tobacco product as a prize should be aware that a number of state and federal laws restrict how these promotions may be held.
And finally, fortunately for the industry, the FDA is apparently not interested in banning business-to-business sampling. The FDA “does not consider this regulation to apply to businesses distributing free samples in a limited quantity (i.e., no more than necessary to achieve a business or market goal, such as awareness of and exposure to the product for the purposes of product or inventory selection) to another business as part of a genuine effort to sell or market a tobacco product to that business,” stated the guidance document. In other words, thankfully, cigar makers may continue to offer retailers cigars to try for free in order to promote their products.
This story first appeared in the November/December 2017 issue of Tobacco Business magazine. Members of the tobacco industry are eligible for a complimentary subscription to our magazine. Click here for details.
