On April 7, 2014, legislators from California, Connecticut, Illinois, Iowa and Massachusetts wrote joint letters to the head of the Federal Trade Commission (the “FTC”) and the Food and Drug Administration (the “FDA”).  The legislators’ letters urged the FTC and FDA to take action against manufacturers of electronic cigarettes that purportedly make false or unsubstantiated claims in their advertising and marketing.

The FTC Letter

The April 7^th letter is not the first letter sent by these legislators to FTC Chairwoman Ramirez.  In December 2013, these legislators asserted that electronic cigarette companies have made unsubstantiated health claims and that the FTC currently has the authority to investigate and take action against these companies.  In response to the December 2013 letter, the FTC noted that the FDA had announced its intention to regulate additional tobacco products – which could include electronic cigarettes.

In their most recent letter, the legislators urged the FTC to take action independent of the FDA.  The legislators stated that the FTC’s mission “to prevent business practices that are anticompetitive or deceptive or unfair to consumers” should not “depend on additional FDA action.”  The legislators also wrote that “[w]e believe that you can and should act immediately to crack down on these false and deceptive claims by e-cigarette manufacturers.”

The FDA Letter

The legislators also wrote a letter to Commissioner Hamburg, urging the FDA “to investigate e-cigarette companies that are making unsubstantiated and potentially false therapeutic claims about products that have not been approved by” the FDA.  “Growing evidence suggests that electronic cigarette use is not associated with many of the companies’ therapeutic claims that these products can help people quit smoking,” the legislators wrote.  Recognizing that the proposed “deeming” regulations are pending before the White House Office of Management and Budget, the legislators indicated that FDA’s Center for Drug Evaluation and Research “does not need this regulation or any new authority in order to investigate companies making unsubstantiated and potentially false therapeutic claims.”

These letters demonstrate the legislators’ interest in regulating advertising and marketing by electronic cigarette companies and suggest that there are various mechanisms to do so outside of the deeming regulations.  Additionally, these letters are not the first steps taken by many of these legislators to encourage regulation and oversight of electronic cigarettes.  Earlier this year, some of these same legislators introduced the federal “Protecting Children from Electronic Cigarette Advertising Act,” which would prohibit marketing electronic cigarettes to children.

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