As the August 10th deadline for the FDA’s new warning requirements inches closer, retailers are evaluating how the new warning requirements for so-called “advertisements” may apply to their online and social media formats. This includes what website and social media content triggers the “advertising” warning requirements for covered tobacco products, such as cigars and pipe tobacco, as well as how best to comply. Note that the regulations do not define “advertisement” for these purposes, and the FDA has yet to provide promised guidance on including compliant warnings in “unique” advertising formats. However, FDA has asserted that these requirements apply to “advertisements” disseminated via web pages and social media. As previously noted by IPCPR, the warning requirements for advertisements also apply to retailers.
Below are recommendations that reflect IPCPR’s interpretations of FDA regulations on these issues. The recommendations below do not constitute legal advice. IPCPR strongly encourages retailers to consult with counsel about their specific situations and compliance plans.
What warnings do I need to incorporate on my website?
If retailers display any product-specific content on their retailer websites (e.g., specific cigar or pipe tobacco images or logos, names of manufacturers or brands, product-specific specials or deals), then they should consider taking the following steps:
- Incorporate (and rotate per the terms of an approved cigar warning rotation plan, if applicable) the appropriate warning statement so that it occupies at least 20% of the viewable screen size;
- Display the warning in the upper portion of every page on which an “advertisement” appears;
- Have the warning visible at all times (i.e., even when you scroll down); and
- Ensure that the warning statement meets the additional formatting requirements for advertising warning statements.
Under this approach, if a page already includes a properly formatted warning statement, retailers should not need to include additional warning statements for each image or covered promotional content.
I have a store Facebook page – what should I know?
- Posts with images or photos displayed on retailers’ Facebook pages that include product-specific content may require inclusion of a warning statement in that specific post. The warning statement should occupy 20% of the visual component, appear in the upper portion, and comply with the other formatting requirements.
- Text-only posts with such content – including cigar reviews and announcements for special events with brand representatives – may also require the inclusion of a warning statement in text form. However, compliance with the additional formatting requirements should not be required based on the limitations of the medium.
- Posts that merely reference or depict a retailer’s store name, the store logo or address, or other subjects that do not include product-specific content should not require inclusion of a warning statement. The same would apply to the account’s profile picture, provided it does not include product-specific content.
I have an Instagram page – what should I know?
- Similar to Facebook posts, retailer Instagram posts that include product-specific content) may require inclusion of a warning statement (including specified formatting requirements) in that specific post.
- Posts that merely reference or depict a retailer’s store name, the store logo or address, or other subjects that do not include product-specific content should not require inclusion of a warning statement.
I have a Twitter page – what should I know?
- Retailer tweets with images that include product-specific content may require inclusion of a warning statement
- Tweets that contain such content may also require the inclusion of a warning statement in text form. However, whether and how FDA would require compliance with the requirement appear less clear for Twitter due to the 200-character limitation. If a retailer includes a warning statement in such a tweet, compliance with the additional formatting requirements should not be required based on the limitations of the medium.
- Tweets that merely reference or depict a retailer’s store name, the store logo or address, or other subjects that do not include product-specific content should not require inclusion of a warning statement.
