Image: Solance

Vape-makers have garnered the attention of U.S. regulators for how they are marketing their products. In warning letters to Solace Vapor, Hype City Vapors, Humble Juice Co. and Artist Liquid Labs dated June 7, the U.S. Food and Drug Administration and the Federal Trade Commission together called out the four vape manufacturers for failing to ensure that the influencers they paid to promote their products declared the sponsored nature of their posts and included a legally-mandated nicotine warning statement in connection with such posts.

In addition to alerting the companies to the fact that all social media posts advertising “cigarette tobacco, roll-your-own tobacco, and covered tobacco products (other than cigars), such as e-liquid products” must include specific warning language (“WARNING:  This product contains nicotine.  Nicotine is an addictive chemical.”), the regulatory agencies state that such posts also require disclosures about their sponsored nature.

“If your company has a material connection” – or in other words, “a connection that might affect the weight or credibility that consumers give the endorsement” – “to someone endorsing your products, that relationship should be clearly and conspicuously disclosed in the endorsements, unless the relationship is otherwise apparent,” the letters state, in accordance with the FTC’s guidelines.

Specifically addressing the requirement that disclosure language be “clear” and “conspicuous,” the FTC states that “an endorser should disclose any material connection above the ‘more’ button [on Instagram].”  Additionally, “Where there are multiple tags, hashtags, or links, readers may just skip over them, especially where they appear at the end of a long post.” 

These directives apply across all influencer marketing, meaning that fashion and beauty brands and influencers should take note. 

The companies must now submit written responses to the FDA and FTC within 15 working days of receiving the letters “describing your corrective actions, including the dates on which you discontinued the violative labeling, advertising, sale, and/or distribution of these tobacco products and your plan for maintaining compliance.”

While the FDA and FTC’s letters specifically spotlight the social media posts from influencers, such as Pandora Blue, Parker Hornaday, Jay Shrek, and SmileKing40, whose follower counts range from 10,000 to 1.7 million, these individuals are not on the receiving end of agency letters. To date, the FTC has been relatively hesitant in naming individual influencers in its warning actions, opting, instead, to focus on the companies at play.

The agency – which is with promoting consumer protection, and eliminating and preventing anticompetitive business practices – focused on celebrities and influencers to an extent in two batches of letters sent in 2017, but it did not formally initiate proceedings against any of the influencers, and is facing scrutiny for its failure to do more.

According to a formal complaint that Truth in Advertising, Inc. (“TINA”) filed with the FTC in March, two years after the FTC “notified [many] social media influencers and marketers about the need to clearly and conspicuously disclose influencers’ relationships with brands when promoting products and services on social media websites, such as Instagram … all but one of them [Lindsay Lohan] have continued to mislead their fan base.”

Pointing to Instagram posts from Naomi Campbell, reality stars Scott Disick and Dorothy Wang, Ciara, and actresses Sofia Vergara, Vanessa Hudgens, Ashley Benson, Lucy Hale, and Shay Mitchell, among others, which lack proper disclosures, such as #ad, what is clear, according to TINA, “is that these social media influencers do not take the FTC’s regulatory guidance seriously and continue to deceptively market goods and services to their fans.”

“It is time that the FTC takes strict enforcement action against these repeat offenders,” the organization states, urging it “to expand its investigation into the marketing tactics used by these social media influencers and put an end to this ongoing and pervasive consumer deception.”

As for the FTC, Mamie Kresses, a senior attorney in its division of advertising practices, said in a statement is spring: “When particular posts and particular influencers are brought to our attention, we do take it seriously. We do look at it, and influencers should know that we take it seriously. Just because you haven’t seen legal action to date does not mean that the FTC is not or would not look at legal action against a particular influencer.”