On February 26, 2014, legislators from California, Connecticut, Illinois, Iowa and Massachusetts introduced the federal “Protecting Children from Electronic Cigarette Advertising Act.”  The legislation would prohibit marketing electronic cigarettes to children.

Specifically, the bill provides that “[n]o person may advertise, promote, or market in commerce an electronic cigarette in a manner that the person knows or should know will have the effect of increasing the use of an electronic cigarette by a child.”  The bill does not include an exhaustive list of advertising that constitutes marketing to children.  Nor does the bill provide examples of activities that would constitute unlawful marketing.  An “electronic cigarette” is defined as “a battery-operated product designed to deliver nicotine, flavor, or other chemicals and that turns chemicals, such as nicotine, into an aerosol that is inhaled by the user.”

If enacted, the Federal Trade Commission would be tasked with policing the advertising and marketing of electronic cigarette companies.  Also, the bill authorizes state attorneys general to sue on behalf of state residents.

While this bill, if adopted by Congress, may require electronic cigarette makers to change their marketing techniques, this is not the first time that D.C. lawmakers have taken steps to regulate electronic cigarette marketing.  Some lawmakers have urged state attorneys general to bring electronic cigarettes within the 1998 Master Settlement Agreement.  Additionally, lawmakers have urged the Obama administration to include such restrictions in the deeming regulations drafted by the Food and Drug Administration.  It appears that the FDA’s regulations will apply to electronic cigarettes, although those regulations have not been released and their scope remains unclear.

For questions and/or comments, please contact Bryan Haynes, Troutman Sanders practice partner, at 804.697.1420 or by email.