FCC Action on E-Cigarettes Unlikely; Carr, Rosenworcel Disagree

By raising the issue in an opinion piece, Rosenworcel isn’t necessarily calling for an FCC rule change on such ads but instead using her influence and position as a commissioner to try to get multiple agencies to act on the matter, an aide in Rosenworcel’s office told us. However, Rosenworcel’s column explicitly says the FCC should “step in” and that acting on e-cigarettes is in “the public interest.” Wilkinson Barker broadcast attorney David Oxenford wrote a blog post questioning the authority the FCC has to issue rules restricting e-cigarette ads but also said in an interview that FCC commissioners such as former Chairman Newton Minow have used “the bully pulpit” to spur change without taking direct action.

“Anytime a government official calls for censoring lawful speech, alarm bells should go off,” said FCC Commissioner Brendan Carr in an interview. By arguing that restrictions on e-cigarette advertising are in the public interest, Rosenworcel signaled that she wants the FCC to take action to limit speech, he said. There would be no need to raise such arguments in a column intended only to get federal agencies to work together to examine an issue, he said. The areas where FCC rules do affect speech, such as indecency, are all based on congressional statute, Carr said.

E-cigarette advertising “is not a real issue,” said Chris Howard, general counsel of e-cigarette company E-Alternative Solutions. Broadcast advertising isn’t an important part of e-cigarette marketing, Howard said, though he added that the industry’s most visible company, Juul, recently commissioned a large broadcast advertising campaign. The e-cigarette industry doesn’t pursue much broadcast advertising because of backlash and concerns about cigarette advertising rules, he said. Juul didn’t comment. The industry should be allowed to create voluntary industry standards around e-cigarette ads, he said. There is “momentum” behind such a plan, Howard said.

Industry self-regulation wasn’t a success for legacy tobacco companies and shouldn’t be allowed for e-cigarette makers, said a spokesperson for anti-tobacco organization Action on Smoking & Health (ASH). The flavors and marketing of e-cigarette companies have been aimed at younger smokers, and only backlash led to Juul’s more recent ad campaign, which features older faces and focuses on health benefits, ASH said. “Why should we trust them?” the spokesperson said. Howard said that e-cigarette makers haven’t aimed their marketing at younger smokers. Juul’s website opens on an age verification tool requiring readers to be over 21, and includes articles on preventing youth tobacco addiction.

“Banning ads for a legal product is unlikely to be something that the FCC, on its own, can do,” said Oxenford in his post. Congress enacted current restrictions on advertising tobacco products. Though the FCC using the fairness doctrine decades ago imposed rules on cigarette ads, the system was unwieldy and already being abandoned when the agency abolished that doctrine, said Davis Wright First Amendment attorney Robert Corn-Revere.

Though Rosenworcel pointed out that the Supreme Court has affirmed current tobacco advertising restrictions, Corn-Revere said the rules are “a historical anomaly” that would face an uphill battle if enacted today. The FCC doesn’t itself restrict ads on other controversial products such as alcohol, marijuana and gambling, but implied or real restrictions from other agencies do affect such ads, Oxenford said “So far, the FCC has had no real role in regulating these products. In fact, one wonders if it really has any authority to take action against the advertising of e-cigarettes without Congressional action,” he said.