FDA & FTC Warning Letters: How Influencers Should Promote E-Liquids

July 8, 2019

It’s no secret that the influencer marketing industry has a tricky relationship with the FTC with regards to guideline compliance. There have been numerous instances of run-ins between influencers and the FTC, almost all of them caused by sponsored parties failing to disclose the nature of their endorsements in their material.

Estimates suggest that 93% of top celebrities neglect to appropriately signal their relationships with brands during social media campaigns. In 2017, FTC warning letters were sent to over 90 celebs, influencers, and brands who violated endorsement guidelines. In a market where the primary bargaining chip is trust between the influencer and the audience, it’s imperative to not take its effectiveness for granted.

As the industry continues to expand dramatically towards the end of this decade, the importance of brands, influencers, and agencies to play by the rules will become a primary consideration. You only have to look at the debacle Kim Kardashian found herself in with the FDA back in 2015 by failing to adhere to the correct standards.

FTC Warns Vaping Influencers

The vaping industry is the latest industry to have run into issues with FTC and FDA compliance this year. Whether that is because influencers have been callous or because they haven’t been given a structured program for best sponsorship practices is what we’re going to discuss today.

Either way, it’s vital that marketers and influencers learn how to execute a bulletproof campaign without running into compliance issues.

FTC Warning Letters Aim to Evaporate Misleading Influencer Sponsored Posts By Including Health Warnings

Vape products are in an interesting position as far as influencer marketing goes. Typically, brands and influencers fall foul of either FTC or FDA guidelines. E-liquid promotions run the risk of failing both, meaning sponsored posts need to be extra careful in their social media campaigns.

Not only do posts have to disclose the sponsor behind the campaign, but they also have to abide by the correct disclosures required and outlined by the FDA concerning health risks and concerns applicable to consumers.

In light of this, the FTC and FDA have jointly sent warnings to four companies:

  • Solace Vapor
  • Hype City Vapors
  • Humble Juice
  • Artist Liquids Laboratories

The FTC warning letters highlighted that influencer campaigns pushed by the brands ‘fail[ed] to disclose material health or safety risks in advertising.’ The FDA stated that their posts failed to include a required federal warning that the item promoted included nicotine.

Let’s have a look at some examples of e-liquid posts that get it right; and those that get it wrong.

Vaping Influencers

Deceptive Influencer Marketing Of Vape Products

Shontel Anestasia is a nano-influencer based in New York City. Her post is an endorsement of e-liquid brand, Humble Juice, and features a short caption with no disclosure tags and a @humblejuiceco reference. The engagement for the post was an impressive 7.7%—an indication of the power of utilizing smaller influencers in campaigns.

Andrew Reed is another nano-influencer nearing 3,000 followers, collaborating with Hype City Vapors. He features a short, personalized caption with an ‘advertisement’ disclosure at the end. He does fall short of FDA regulations, however, by failing to disclose the health concerns of the endorsed product.

Elissa Lynn is an ambassador for Artist Liquids Laboratories. Her post is excellent from a pure social media marketing standpoint, with an artful image, great caption, good tag use, and a compelling call-to-action. From a compliance standpoint, it does not abide by FDA guidelines.

This New Jersey-based micro-influencer maintains endorsements from several brands; this post featuring an Artist Liquid Lab product. If sponsored, the post doesn’t acknowledge the partnership, while also lacking FDA compliance.

It’s worth noting, however, that the image shows the health warnings on the product packaging, and the influencer consistently abides by FDA regulations in his other posts with the use of banners. It doesn’t feature the now-popular banner across the top of the image. Just to stay on the safe side, exercise caution and state in the caption or with an image banner.

Proper Disclosure Of Vape Product Health Risks

Vapingkamea is a mid-tier influencer with 60,000 followers endorsed by Solace Vapor. Her post features an image with a warning banner and a short caption with a nicotine warning along with the appropriate #ad within the tags. This is a typical example of a post that adheres to both FTC and FDA regulations.

Farrah is by far the biggest influencer on our list. With 235K followers. She is comfortably in the mid-tier of social media influencers and has a large audience, styling herself as a ‘vape promoter’ after quitting from 15 years of smoking.

Her post has a short caption with the FTC-compliant #ad and #sponsored tags, in addition to the familiar banner that we will become more accustomed to with smoking- and vaping-related promotions.

Will The FTC Regulate Soon Regulate The Promotion Of Detox Teas, Too?

As we’ve seen in these examples, correct disclosure by influencers can be difficult. As marketers and brands continue to use strategies of sponsoring smaller influencers, it’s almost a certainty that non-compliance with guidelines will occur and some will slip through the cracks.

Unlike larger influencers, nano- or micro-influencers may lack the knowledge or direction to appropriately comply with regulations.

It’s not just vaping brands that will have run-ins with federal agencies over influencer marketing. The latest concern regards the promotion of detox teas which claim weight-loss benefits for consumers.

This post, for example, is FTC-compliant, with a clear indication that the post is sponsored by Flat Tummy Co., but there is a gray area with the promotion.

The brand is careful not to express specific medical or health benefits of their tea, but a significant number of posts clearly position the tea as a supplement to weight-loss for women.

None of the sponsored posts outline any direct health benefits or adverse effects from consuming their product, raising concerns of transparency from brands using influencer marketing to reach out to audiences.

When pharmaceutical brands ran into similar issues, they were quick to navigate the FDA and FTC obstacles by instead opting to partner with influencers without promoting individual products. They often form partnerships to promote a cause, avoiding directly endorsing consumer products—more importantly, they can also avoid those off-putting health warnings required by the FDA.

E-Liquid Product Companies Are Responsible For Ensuring Influencers Disclose Health Warnings To Protect Consumers

As an industry, influencer marketing is only as strong as the trust that influencers can enjoy from their audiences. That trust is principally maintained through openness and transparency.

It’s vital that brands and influencers do not take advantage of the relationships built with audiences. It’s generally the case that online audiences are pretty switched-on when it comes to perceptions of influencer marketing, and are good at separating a poorly considered campaign from a successful one.

There is, however, a unique determination to be made regarding the social media marketing of products that can have direct effects on a consumer’s health (positive or adverse)—something that predominantly concerns certain industries such as medicine.

With regards to e-liquids, the FDA and FTC warning letters are clear indications that they will be willing to step in if they feel that certain products are being marketed without the correct compliance.

Like pharmaceutical brands, e-liquid or nutrition brands may conclude that complying by FDA rules is too much of a turn-off for their consumers, in which case they may seek to try different approaches that don’t directly advertise specific products to get around them.

It will be up to the governing bodies to ensure that the playing field is level for brands of all industries, and it’s up to marketers and influencers to maintain transparency and continue building strong relationships with their audiences.