Four vape juice manufacturers were the target of FDA warning letters this week. The targets of the letter were Solace Vapor, Hype City Vapors LLC, Humble Juice Co. LLC and Artist Liquid Labs. The FDA accused the e liquid manufacturers of posting, “Content touting the flavored e-liquid products or recommending their social media followers try the products without including the required nicotine warning statement.”
The FTC also used this opportunity to once again urge influencers on social platforms to disclose when they are given free products or paid to promote an item.
How they picked out these four companies is unclear. Perhaps it was the volume of posts on their hashtags, the reach of the influencers they used, or maybe someone complained. It should be pointed out that there is no way to stop Instagram users from posting content and using a given hashtag.
You can hold a company accountable for paid influencers who do not abide by the rules. It is also reasonable to expect a company owned Instagram account to maintain compliance with the regulations. But it is not fair to go after user generated content. Juul has caught a lot of flak for this phenomena. Now it appears that four ejuice companies are also in the crosshairs of the FDA and FTC.
One thing is for sure, you have to look long and hard on Instagram to find an e-juice nicotine warning which meets the FDA’s requirements. Below this paragraph is a screen shot of the hashtag "ejuice". It was taken at the time of this post. Finding a US company not in compliance is like shooting fish in a barrel.
FDA Guidance On E-Cig Marketing
If you own a vape shop, it is worth taking a look at the FDA’s guidance on e-cig marketing. Any slip up by our industry is immediately framed as targeting minors, so it is important to be upstanding corporate citizens.
The relationship between vaping and social media is fraught with accusations. To protect yourself, here is a basic rundown of the rules that have been enforceable since September 2018. Nicotine warning labels for vape juices on social media must:
- Appear on the upper portion of the advertisement within the trim area.
- Occupy at least 20 percent of the area of the advertisement (warning area).
- Be printed in at least 12-point font size, using a legible sans serif font such as Helvetica or Arial Bold. Capitalization and punctuation are required.
- Typography must be either black on white, or white on black, in a manner “that contrasts by typography, layout, or color, with all other printed material on the advertisement.
- The text must occupy the “greatest possible proportion of the warning area.”
- The text also has to be: “centered in the warning area in which the text is required to be printed and positioned such that the text of the required warning statement and the other textual information in the advertisement have the same orientation.”
- A rectangular border that is the same color as the text of the required warning statement and that is not less than 3 millimeters (mm) or more than 4 mm.
In other words, something like the image below is compliant for Instagram and the open graph image for this article above is Facebook compliant. This article, and I believe certain device reviews, don't actually need the warning. But any vape juice post does, even if the juice is nicotine free. I make a point of including the warning on every post because it lends an air of authority to the image. At least that is what I tell myself.
Social Media and Vaping
Vaping companies have long been viewed with suspicion whenever they make a foray onto social media. Unfortunately, critics pounce when this sort of infraction hits the news. Facebook and Google have long banned paid advertising by vaping companies, but the use of social media influencers has always been a sore spot for anti-vapers.
Juul is quite insistent that their relatively small campaign of influencer marketing, which ended years ago at this point, played little role in their growth. Yet it is cited as a catalyst of what is commonly referred to as the Teen Vaping Epidemic.
Of course, if you expand your horizons beyond vaping and look at health companies, you will find there is no shortage of self-care influencers peddling miracle cures that run afoul of FDA structure-function claims. So it appears the FDA's selective enforcement on social media channels is pretty much universal.
Phillip Morris Suspends Influencer Campaign
Phillip Morris suspended their IQOS influencer campaign in May after it was discovered one of the influencers was under the age of 21. Alina Tapilina (@alina_tapilina) turned out a post that was pretty standard fare.
But self-care boiler plate and a nicely lit backdrop were enough to bring the critics out and drive the tobacco giant out of the influencer marketing business.
It actually looked quite a bit like a wellness influencer post to be honest. Apparently neither is acceptable in polite society now, although only one gets sanctioned. The fact that 18 is the legal age to smoke and vape in Russia, and that the Instagram post was in Russian hardly mattered.
Millenial Does Not Equal Minor
The CDC Tobacco Fact Sheet shows that the recent gains in made in reducing smoking rates do not apply to millennials, but to the younger Generation Z. It understandable why ejuice companies would want to target these smokers, but using anyone less than middle aged in an advertisement is considered marketing to children.
Directly marketing to adults approaching middle-age and beyond is also fraught with difficulty. Retro ejuice packaging targets nostalgic adults, but for some reason Reagan-era sugar coated cereals are viewed as being particularly appealing to minors born after the turn of the century.
It must be the same black-magic that made creme brulee vape pods, an upscale dessert that peaked in popularity a quarter-century ago, so alluring to children. Juul was forced to change the name of their vape pod flavor to creme after the outcry.
More recently, a group of senators accused Juul of marketing to minors. The results of the Senatorial investigation are still pending, but it is reasonable to assume that any past effort Juul has made to build brand awareness will be construed as a part of a nefarious plot to hook children on nicotine. The fact that strict e-cig laws punish marginalized groups does not matter to these silver-haired liberal lions.
That is how we ended up with a situation like San Francisco. A city famous for extending humane policies to the homeless and IV drug users, including needle exchanges and safe injection sites, San Francisco has proposed virtual e-cig prohibition. The message is clear. Smokers must embrace the gold-standard of total abstinence or use Big Pharma approved nicotine replacement products.
The fact that vaping crushed nicotine replacement therapy in a New England Journal of Medicine study has been discarded with hand waving because it does not fit the anti-vaping narrative.
The same standard of reducing adult access to protect children does not apply to alcohol for one simple reason: demographics. The rich have largely abandoned smoking, yet the wealthy and most educated drink more than any other group. This explains why a scourge like teen alcohol abuse is brushed under the rug. According to the CDC, underage drinking kills 4,300 teens annually and sends another 119,000 to the emergency room.
Stanford E-Cig Marketing
The claim that certain vaping companies targeted minors is a bold one. So what sort of smoking gun evidence do vaping critics have to support this rather damning accusation?
The primary source of evidence is the Stanford E-Cig Marketing Study. Don’t be fooled by the name or the association with an esteemed university. Take a look at it for yourself.
It is soft-science at its worst.
The Stanford E-Cig Marketing Study is a slide show of images that have been curated with a very distinct and counter-factual point of view.
Marketing to Teens
It is important not to downplay the dangers of teen vaping. At Vapor4Life, we have no interest in selling our products to minors or adult non-smokers. That being said, it is enlightening to see how loosely the authors of the Stanford study defined “marketing to teens”.
Coupons and discounted items at sporting events automatically qualifies, but the specific details about the composition of the audience or even concerts in question was often omitted. The did mention the Super Bowl, and several music festivals. The devil is in the details of course.
A bit of effort to dig up gate sales, and demographics would have gone a long way to making this "study" resemble an actual study. Instead, we are left with an image gallery. At the very least, they should have given us the option of watching an animated version using the default "Ken Burns Effect" from a late 1990s iMac. That would have made the images pop.
Evocative of Underage Teens
Another attack was directed at Juul’s short-lived “Vaporized” campaign. The researchers noted that Juul, “featured models in their 20s appearing in trendy clothes engaged in poses and movements more evocative of underage teens than mature adults.” This word-salad could mean almost anything.
It is unclear why Juul chose to avoid sickly, seething and sullen models. No one knows why vibrant young adults and bright colors are so popular with advertisers.
Why doesn’t Mercedes Benz commercials feature octogenarians boasting of their first taste of true luxury during the 1970s fuel crisis ? I’m sure a campaign that interviewed senior citizens discussing smoky diesel fumes, Jimmy Carter and landau tops would move the sales needle.
Targeting Teens With E-Cig Ads
Fortunately, the Stanford researchers provided additional clarification. “Some attendees were photographed in poses reminiscent of teen behavior, such as wearing a hat on backwards, while holding a skate board, or a girl with purple hair holding a Juul.” Sounds a bit like Poochie the Dog from a classic Simpson’s episode. Not to repeat myself, but millennial does not equal minor.
The depravity of e-cig marketing was also showcased when the Stanford study curated a series of, “Photos show(ing) attractive young girls in colorful Juul tee shirts serving as hosts and distributors of free samples.”
Below is the image in question. The subjects are young, and appear to identify as female. But to call them “young girls” IS misogynistic.
Would two men of the same age and in gender equivalent outfits be labelled as “young boys”? It is inappropriate and insulting. In the interest of fairness, perhaps Stanford can put together a slide show of inaccurate memes and headlines attacking e-cigarettes.