FCC Crackdown on E-Cig Ads is a Danger to Public Health

Federal Communications Commissioner Jessica Rosenworcel is demanding a multi-agency crackdown on the alleged scourge of e-cigarette advertising.

According to Rosenworcel, we're witnessing the birth of the 21st century Marlboro man. The rugged cowboy has been replaced by young Instagram worthy millennials nonchalantly vaping while surrounded by bright colors.

E-cigarette companies regularly face lashings for their marketing techniques, none more so than market leader Juul. But Rosenworcel is behind the times; in late 2016, the company switched to exclusively using models 35 and over, and only uses real customers who have switched from smoking to vaping. These are hardly the actions of a company trying to re-create the Marlboro Man or Joe Camel.

But this appears to have done little to placate Rosenworcel, who claims the real purpose of e-cigarette industry advertising is to ensnare underage customers in the hope of boosting sales. This defies everything we know about the economics of advertising as well as the incentives of e-cigarette companies. These companies are not trying to hook nicotine naive teens but to capture a larger slice of the total market for nicotine products, their chief rival being regular cigarettes. In other words, market share — rather than boosting demand — is the name of the game. Targeting teens when there is a $90 billion adult cigarette market for the taking is not just bad ethics, it's a lousy business strategy.

E-cigarette companies advertise because there are more than 30 million smokers they can appeal to as well as millions of exclusive vapers. Nor are e-cigarette companies a monolith. They don't advertise as an "industry," but as individual businesses competing against each other. The purpose of such advertising is to get smokers to switch from cigarettes to e-cigarettes, or vapers to switch from one e-cigarette to another.

The problem for e-cigarettes isn't that advertising rules are too lax, but that they're far too restrictive. E-cigarette companies are forbidden from advertising their most significant benefit — that their product is substantially safer than cigarettes.

To change this, they need to file a Modified Risk Tobacco Product (MRTP) application with the Food and Drug Administration (FDA) and have it approved. These applications can cost millions of dollars and take an enormous amount of paperwork. There are four MRTP applications under review, none of which are for e-cigarettes, and as of yet FDA has not approved a single MRTP application in its history. As well as being overly burdensome, there are substantial grounds to believe these requirements are themselves First Amendment violations. Having to pass a government approval test to make factual statements about a product flies in the face of commercial free speech.

Far from being a threat to public health, e-cigarette advertising is an enormous benefit. A study published in 2018 found that banning TV advertising for e-cigarettes would've reduced the number of smokers who quit in the recent past by approximately three percent, resulting in around 105,000 fewer quitters. The study's authors added that if FDA were not considering regulations that will eliminate most e-cigarette companies, e-cigarette ads might have reached the number of nicotine replacement therapy ads during their sample period, which would have increased the number of smokers who quit by around 10 percent — an additional 350,000 quitters.

Not only are e-cigarettes safer than their tobacco-filled rivals, but there's also increasing evidence to suggest they're more effective at helping smokers quit than the traditional nicotine replacement therapies (NRT). In January, the New England Journal of Medicine published a randomized controlled trial showing e-cigarettes to be almost twice as effective as NRT at helping smokers quit.

Advertising, in general, gets a bad rap, but it is vital to inform consumers and grow businesses. E-cigarette advertising is doubly beneficial as it can help draw smokers away from cigarettes to something substantially safer.

Rosenworcel's proposals aren't just constitutionally dubious; they're a threat to public health. As long as the FDA restricts the ability of e-cigarette companies to advertise their principal benefit, they should be applauded for making their product as appealing as possible.

Guy Bentley is director of consumer freedom at Reason Foundation.

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