The FTC and the FDA announced today that they jointly sent warning letters to four companies that market flavored e-liquid products. The letters cite postings by influencers on social media sites endorsing the companies’ products and state that the influencers' posts failed to include required product warnings and failed to include a disclosure about the influencers' "material connection" with the companies.  

Specifically, the FDA determined that the featured e-liquids were "misbranded" because the social media posts did not include following: "WARNING: This product contains nicotine. Nicotine is an addictive chemical."  The letter also warns the marketers that it is their responsibility to ensure that their products "and all related labeling and/or advertising on your website, on any other websites (including e-commerce, social networking, or search engine websites)...comply with each applicable provision of the FD&C Act and FDA’s implementing regulations."

In addition, the letter states that, "given the significant risk of addiction, the failure to disclose the presence of and risks associated with nicotine raises concerns that the social media postings could be unfair or likely to mislead consumers," and thus, could violate the FTC Act.

Not selling flavored e-liquid products so no worries? Don't be complacent. While products with potentially serious health risks are certainly likely to be at the top of the regulators' enforcement priorities, these letters (and the FTC's press releases about them) underscore the fact that companies' social media activities are on the regulators' radar and are being scrutinized.  As noted by the FTC's Lesley Fair in her post about the warning letters, "[if influencers'] posts don’t include required disclosures, if they aren’t making those disclosures clearly, or if they’re conveying misleading or unsubstantiated claims about your products, don’t sit on the sidelines. Insist on corrective steps or cut them loose."