State advertising restrictions running into constitutional problems

Attempts to regulate e-cigarette advertising in some U.S. states are falling foul of constitutional law.

A new report from ECigIntelligence examines how different entities in the U.S. are looking to regulate advertising and marketing of e-cigarettes. A number of states have chosen to go their own way in the absence of federal oversight, but more than one of their efforts is likely to fail due to constitutional protections.

States including Texas, Utah, Oklahoma and Washington have proposed or enacted laws limiting e-cigarette advertising. A number of smaller jurisdictions – such as the city of San Diego – have also attempted to do the same.

However, a number of these laws have not been able to stand up to challenges. For example, San Diego attempted to create a 1000-foot buffer zone around sensitive areas such as schools, libraries, gaming arcades, recreation centres and childcare facilities, banning e-cigarette advertising in the area. But this violated protections on commercial speech.

A similar law in Texas is likely to also be brought down, according to the ECigIntelligence report.

Among those calling for tighter restrictions on e-cig advertising have been consumer advocacy groups and law-makers. Critics say that e-cig companies are using unsupported health claims; using sex to sell; attempting to appeal to younger consumers; and attempting to re-normalise nicotine use.

They would like to see significant restrictions placed upon what e-cig companies can say or do in promoting their products – similar to the limits tobacco companies face in selling conventional cigarettes.

These would include bans on the use of almost any kind of advertising medium.

What This Means: Although e-cigarette advertising regulation is unlikely to grow quite as strict as that covering tobacco, states are starting to try imposing limits on what can be said, where it can be said and how it can be said.

ECigIntelligence subscribers (with Platinum, Gold or U.S. Silver subscriptions) can discover more about attempts to regulate e-cigarette advertising practices and how they are likely to fare in our report. Non-subscribers can find out about subscription packages or contact Tim Phillips to buy a standalone PDF copy of the report.

– Freddie Dawson ECigIntelligence staff

Photo: Keith Hall

Freddie Dawson

Senior news editor

Freddie studied at King’s College, London and City University and worked for publications including The Times, The Malay Mail, PathfinderBuzz and Solar Summary before joining the ECigIntelligence team. He has extensive experience in covering fast-moving consumer goods (FMCG), manufacturing and technological innovation.