Durbin, Harkin, Rockefeller, Waxman & Members of Congress Call on E-Cigarette Makers to Explain Marketing Tactics Targeting Kids

Use of new nicotine delivery devices is on the rise among children and teens

[WASHINGTON, D.C.] – Following new information from the Centers for Disease Control and Prevention (CDC) showing a dramatic increase in the use of e-cigarettes among children and youth, twelve members of Congress today called on nine e-cigarette makers to provide additional information regarding the sale, distribution, labeling, and marketing of their products to children and teens. Currently, e-cigarettes are not subject to federal laws and regulations that apply to traditional cigarettes such as the prohibition on selling to persons younger than 18, distribution of free samples, television and radio ads, and having characterizing fruit flavors that appeal to kids.

U.S. Senator Dick Durbin (D-IL) was joined by the Chairmen of the Senate Health Education Labor and Pensions Committee, U.S. Senator Tom Harkin (D-IA), the Chairman of the Senate Commerce, Science and Transportation Committee, U.S. Senator John D. Rockefeller (D-WV) and the Ranking Member of the House Energy and Commerce Committee U.S. Representative Henry A. Waxman (D-CA) along with U.S. Senator Richard Blumenthal (D-CT), U.S. Senator Edward J. Markey (D-MA), U.S. Senator Sherrod Brown (D-OH), U.S. Senator Jack Reed (D-RI), U.S. Senator Barbara Boxer (D-CA), U.S. Senator Heidi Heitkamp (D-ND), U.S. Senator Jeff Merkley (D-OR) and U.S. Representative Frank Pallone (D-NJ).

“For more than four decades a federal ban on cigarette ads for radio and television has helped to deglamorize smoking for young people. Despite claims from some e-cigarette makers that they do not market their products to youth and that kids should not have access to their products, e-cigarette manufacturers appear to be applying marketing tactics similar to those used by the tobacco industry to hook a new generation of children,” the Members of Congress wrote. “In light of public health concerns regarding exposure to addictive nicotine in e-cigarettes and the sharp rise in e-cigarette use among teens, we want to better understand your company’s policy and practices related to the sale, marketing, and distribution of e-cigarettes.”

Earlier this month, the CDC released new data showing that use of these products has more than doubled among middle and high school students since the 2011-2012 school year, and that more than 76 percent of those users said they also smoked conventional cigarettes. The study also found that 1 in 5 middle school students who reported using e-cigarettes had never tried conventional cigarettes, which suggests that for young people, e-cigarettes could be a gateway to nicotine addiction and smoking. More information on that report is available here.

In April, Durbin, Blumenthal, Brown, Reed, and U.S. Senator Frank Lautenberg (D-NJ) called on the Food and Drug Administration to issue “deeming regulations” asserting regulatory authority over tobacco products, such as electronic cigarettes, and to restrict the sale, distribution and marketing of e-cigarettes and other nicotine products to children and young adults. That letter is available here.

Today’s letter was sent to the following companies: NJOY, Lorillard Inc., Reynolds American Inc., Altria Group, Inc., LOGIC Technology, Eonsmoke, GreenSmoke, VMR Products, and Lead By Sales LLC.

[Text of today’s letter is below]

September 26, 2013

Craig Weiss

President and Chief Executive Officer

NJOY

15211 N. Kierland Blvd #200

Scottsdale, AZ 85254

Dear Mr. Weiss:

We write to express our concern about the marketing and sale of electronic cigarettes to minors.

Electronic cigarettes, also called e-cigarettes and e-cigs, are battery-operated products that simulate traditional cigarettes by converting cartridges typically filled with addictive nicotine, other additives, and flavorings into vapor inhaled by the user. Recent studies released by the Centers for Disease Control and Prevention (CDC) indicate that e-cigarette use by adults, as well as middle and high school students doubled in recent years.[1],[2]

Currently, e-cigarettes are not subject to federal laws and regulations that apply to traditional cigarettes. For example, federal laws and regulations prohibit traditional cigarettes from being sold to persons younger than 18, distributed as free samples, advertised on television and radio, and having characterizing fruit flavors that appeal to kids. In addition, traditional cigarettes may only be displayed behind the counter where they are accessible to the public only through direct interaction with a sales clerk.

For more than four decades a federal ban on cigarette ads for radio and television has helped to deglamorize smoking for young people. We are concerned that e-cigarette makers are using a broad range of marketing techniques previously employed by traditional cigarette companies to entice youth to use their products. These marketing techniques include utilizing advertisements and product placement with celebrities; sponsorship of events; distributing samples; selling products in flavors that appeal to children, such as strawberry and bubblegum; and making their product easily available to youth online and in the now ubiquitous e-cigarette mall kiosks.

Despite claims from some e-cigarette makers that they do not market their products to youth and that kids should not have access to their products, e-cigarette manufacturers appear to be applying marketing tactics similar to those used by the tobacco industry to hook a new generation of children. Further, a CDC study released this month found that in just one year, from 2011 to 2012, e-cigarette use more than doubled among middle and high school students from 4.7% to 10%.[3] The report cited that 76.3% of youth who used e-cigarettes also smoked conventional cigarettes within the previous 30 days. This study reinforces growing concerns regarding the marketing of e-cigarettes to youth through tactics currently prohibited for traditional cigarettes. Additionally, the study finding that 1 in 5 middle school students who reported using e-cigarettes had never tried conventional cigarettes suggests that for youth e-cigarettes could be a gateway to nicotine addiction and smoking.

In light of public health concerns regarding exposure to addictive nicotine in e-cigarettes and the sharp rise in e-cigarette use among teens, we want to better understand your company’s policies and practices related to the sale, marketing, and distribution of e-cigarettes. We respectfully request that you provide a written response to the following questions by October 25, 2013.

Does your company market e-cigarette products to children, teens, and adults? If so, what advertising tools do you use to target these demographics?

Has your company ever sponsored any athletic, musical, or other social or cultural events under the brand name of e-cigarette products? Please provide the name and date of the sponsored event and include a description of any age restrictions that were placed on the event participants or attendees.

Has your company ever aired radio or TV ads to market e-cigarettes? If so, please provide copies and describe the advertisement, including the day and time when it was aired, the audience it was intended to reach, and whether any restrictions were put in place for the advertisement purchase.

Does your company have in place a policy that sets what the media buying target age should be for advertising media? If so, please provide a copy of that policy. If not, why not? Does this policy place restrictions for advertisement purchases for audiences under the age of 18?

Does your company use social media to promote or market your e-cigarette products? If so, does your company place restrictions on the ages of individuals who have access to your social media sites? If yes, please describe. If not, why not?

Does your company use print media to promote or market your e-cigarette products? If so, does your company place restrictions on the ages of individuals who have access to your print media? If yes, please describe. If not, why not?

Please explain what steps your company has taken to restrict marketing of e-cigarettes to children and teenagers. Since the release of the CDC study on youth use of e-cigarettes, has your company taken any steps to modify its marketing practices? If so, please explain.

Does your company utilize celebrity spokespeople, who appear in advertisements or at events related to e-cigarettes? If so, please name the celebrity and the specific product(s) endorsed, and at what events or in what types of advertisements.

Has your company conducted market research for e-cigarette products related to images and messages that appeal to adolescents, or consulted with outside experts on consumer psychology and behavior in order to inform marketing strategies? Please provide documentation of any such research and the names of any experts or outside groups with whom your company has consulted.

Does your company manufacture e-cigarettes with characterizing flavors? If so, please list those flavors. What percentage of your total inventory and sales is made up of flavored products?

Does your company require vendors, including online vendors, of your e-cigarette product(s) to contractually agree to not sell e-cigarettes to persons under the age of 18? If so, what steps are they contractually required to take to ensure that e-cigarettes are not sold to persons under the age of 18?

Does your company have contracts with retail vendors to display your e-cigarette products and/or advertisements for your products? If so, which retail vendors?

Does your company require vendors of your e-cigarette product(s) to display them behind the counter or where they are accessible to the public only through direct contact with a sales clerk? If so, are vendors bound by contractual language to this requirement? And what does your company do to ensure that this requirement is followed?

Does your company distribute free samples of your e-cigarette product(s)? If so, please provide a list of where free samples of your product(s) have been distributed. What steps if any does your company take to ensure no samples are given to persons under the age of 18?

Does your company allow taste tests of your e-cigarette product(s)? If so, what steps if any does your company take to ensure taste tests are not given to persons under the age of 18?

Does your company distribute promotional materials related to e-cigarettes, such as gift bags, posters, and clothing. If so, please describe the promotional materials? Additionally, what steps, if any, does your company take to ensure that no promotional materials are given to persons under the age of 18?

What type of warning labels, if any, are on the packaging for your e-cigarette product(s)? Has your company conducted any research to measure the effectiveness of the warning label?

Has your company performed any studies to determine whether your e-cigarette product(s) are safe for children and teens? If so, please provide these studies. If no, why not?

Please describe the advertising claims made by your e-cigarette products(s). Have any of these claims suggested health benefits or reduced exposure to potentially harmful or addictive substances associated with using your product compared to traditional cigarettes or other tobacco products? Has your company substantiated these claims? If so, please provide documentation (i.e. study results, summaries, analysis, etc.) that substantiated these claims. If not, why not?

How much did your company spend on all marketing and promotions related to e-cigarettes in total each year, from 2009 (or the year the company began) to this year?

Please provide a written response to these questions by October 25, 2013. Should you have any questions, please contact Dr. Binta Beard with Assistant Majority Leader Durbin at 202-224-2152, Beth Stein, Chief Investigative Counsel with Chairman Harkin at 202-224-2931, Kristin Amerling, Chief Investigative Counsel and Director of Oversight with Chairman Rockefeller at 202-224-1300, or Brian Cohen, Oversight and Investigations Subcommittee Staff Director with Rep. Waxman at 202-225-3641. Thank you for your assistance and cooperation in response to this request.