New FDA Tobacco Advertising Requirements

Know the New FDA Warning Requirements for Tobacco Advertising

DELAYED UNTIL FURTHER NOTICE

FDA REQUIRED WARNING STATEMENTS ON ADVERTISEMENTS

The FDA Deeming Rule requires that all cigarette tobacco, RYO tobacco, covered tobacco products, and cigars display a warning statement on advertisements.

ADVERTISEMENTS

Advertisements include print advertisements and other advertisements with a visual component. Some examples of advertisements subject to the Deeming rule include the following:

Promotional materials (point-of-sale or non-point of sale), billboards, posters, placards, published journals, newspapers, magazines, other periodicals, catalogues, leaflets, brochures, direct mail, shelf-talkers, display racks, Internet Web pages, television, electronic mail correspondence, and also include those communicated via mobile telephone, smartphone, microblog, social media Web site, or other communication tools; Web sites, applications, or other programs that allow for the sharing of audio, video or photography files; video and audio promotions; and other items.

WHO IS RESPONSIBLE?

Once the required warning statements take effect, it will be unlawful for any cigar manufacturer, packager, importer, distributor, or retailer to advertise or cause to be advertised within the United States any cigar unless the advertising bears one of the required warning statements, in accordance with the FDA-approved warning plan.

Retailers are responsible for adhering to the FDA warning requirements for advertising if that retailer creates their own advertising.

Additionally, a retailer will still be held liable if the retailer displays, in a location open to the public, an advertisement that does not contain a health warning, or contains a health warning that has been altered by the retailer in a way that is material to the FDA requirements.

The warning statements on advertisements must meet the following requirements:

Appear in 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 and ensure that the required warning statement occupies the greatest possible proportion of the warning area set aside for the required warning statement.
Be printed in conspicuous and legible Helvetica bold or Arial bold type or other similar sans serif fonts and in black text on a white background or white text on a black background in a manner that contrasts by typography, layout, or color, with all other printed material on the advertisement.
Be capitalized and punctuated.
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.
Be surrounded by 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 4mm.
CIGARS: Advertisements for cigars must include one of the six warning statements for cigars, these warning statements must be rotated quarterly in advertisements, in alternating sequence, for each brand of cigar in accordance with a warning plan submitted by the responsible cigar manufacturers, importers, distributors, or retailers to, and approved by, the FDA.
CIGARETTE TOBACCO, RYO TOBACCO AND COVERED TOBACCO PRODUCTS OTHER THAN CIGARS: Advertisements must include the one warning statement: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.”

WARNING STATEMENTS FOR CIGAR ADVERTISEMENTS

WARNING: Cigar smoking can cause cancers of the mouth and throat, even if you do not inhale.
WARNING: Cigar smoking can cause lung cancer and heart disease.
WARNING: Cigars are not a safe alternative to cigarettes.
WARNING: Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.
WARNING: Cigar use while pregnant can harm you and your baby.
WARNING: This product contains nicotine. Nicotine is an addictive chemical.

PENALTIES

Any person who violates this provision shall be subject to a civil penalty of up to $15,000 for each violation and up to $1 million for multiple violations ruled on in a single proceeding.

MORE INFORMATION

The FDA continues to update its Deeming Webpage to provide information designed to help the industry understand the Deeming rule.