Senators Find E-Cig Advertising a Drag

Cigarette hearings have returned to the Hill, in this case e-cigarettes, and that industry looks to be on a hot seat that isn't likely to cool anytime soon.

The Senate Commerce Committee Wednesday held a hearing on the marketing of e-cigarettes, including on TV, and what, if anything, Congress should do about it. The tone was decidedly angry and accusatory, with Democrats in particular characterizing it as a repeat of the Big Tobacco hearings, where companies took an oath, and then lied.

There are currently no prohibitions on e-cigarette ads, and some of the flavors of the liquid nicotine delivery systems include cotton candy, gummy bears, Captain Crunch, and Bazooka Joe, leading to concerns, including from Committee Chairman Jay Rockefeller (D- W.Va.) that the e-cigs are being marketed to children, as "combustible cigarettes" have been accused of doing. (Regular cigarettes can no longer have flavors).

Rockefeller, toward the end of the hearing, appeared fed up, and lit into the industry witnesses with a harshness he said himself was unprecedented. "I think this whole thing is about the money," he said. "It's uncreative, nasty and like pornography, or maybe what you do is worse. I am ashamed of you and I don’t know how you get to sleep at night, and what gets you to work in the morning except the color green. You're what's wrong with this country."

"A report published this month in the journal Pediatrics found that youth exposure to e-cigarette advertising on television increased 256 percent over the past two years," said Rockefeller in his opening statement. "A May American Legacy Foundation report found that  last year over 14 million teens saw e-cigarette advertising on television, and 9.5 million saw print ads. So while major e-cigarette companies reiterate that they target only adults, a large youth audience still appears to be getting their message loud and clear," he said, and he is "concerned," as well as "on edge" generally about the delivery system of the "highly addictive substance called nicotine."

The committee released a report in April that found that "“e-cigarette manufacturers are aggressively promoting their products using techniques and venues that appeal to youth.”  

Sen. Barbara Boxer (D-Calif.) was incensed by the flavors the e-cigarettes, like popsicle and cotton candy, and hammered the marketers over what appeared to be an obvious target to kids, including ads that appeared to feature Smurfs smoking. boxer pointed out that one of the slogans for an e-cigarette is "Let it Glow," when the top song from the top animated movie, Frozen, is "Let it Go."

"We are seeing a repeat, and we here in this committee get it," she said. "Don't be a part of this," she said to the industry witnesses, "because you will regret it."
Sen. Richard Blumenthal (D-Conn.) said it did have an eerily familiar feeling, and that the only difference between the e-cigarette makers before him and big tobacco was that they were not under oath. "WE have seen this movie before. It is called Big Nicotine Comes to a Theater Near You." He said there was a "sense of denial that I cannot credibly accept." He said they had taken Big Tobacco's playbook and applied it to non-combustible cigarettes. Use of celebrities and images like "Mr. Cool." He said the evidence is undeniable that they are trying to reglamorize cigarettes.

Sen Amy Klobuchar (D-Minn.), a former prosecutor, said there is heavy duty marketing to youth, citing 2 million kids that have sampled the e-cigarettes, the heave use of social media--Twitter and YouTube--and the use of celebrity models.

Jason Healy, president of blu eCigs, a subsidiary of Lorillard, told the senators that the company limits its marketing to audiences that are at least 85% adult, similar to other adult products [the alchohol industry has similar voluntary guidelines]. He pointed out he was a father and a smoker. He said the average age of his product's buyers are over 50.

Craig Weiss, president of e-cigarette company NJoy said his product was not targeted to kids, but that the product needed to be marketed because people can't use what they don't know about.

He pointed out that his company was not associated with Big Tobacco and that its goal was to eradicate "combustible" cigarettes and the hundreds of thousands of deaths it causes each year. He said that if marketing of his product were limited to that of Big Tobacco, the beneficiary would be Big Tobacco.

Weiss told Rockefeller that his advertising was targeted to adults, and did not believe his ads appeal to young people. Weiss said he only advertises in programming with predominate adult audience, whether in TV or print.

Matt Myers, president of the Campaign for Tobacco-Free Kids, says he is deeply concerned about the ads for e-cigarettes on bikini bottoms on women that ran in Sports Illustrated, the sponsorship of rock concerts, and other marketing that appeals to young people. Myers said the youth-targeted marketing of e-cigarettes was just like that of the Big Tobacco companies.

Sen. John Thune (R-S.D.) explored the argument that the e-cigarettes could help millions of smokers quit, signaling he was looking for a balanced approach.

But Rockefeller said early on that his focus was not the possible efficacy for smokers, but encouraging youth to use a new nicotine-delivery system. He said the focus was "on how marketing of e-cigarettes reaches America’s youth and what consequences that may have."

Health policy consultant Scott Ballin said he did not think banning ads was the way to go.

Boxer said she had heard some things in the hearing that were not true. She said neither was accurate in saying their product could help smokers quit, citing a study that did not find that to be the case.

Both Healy and Weiss told Boxer they were not targeting nonsmokers, but, in answer to questions from Ed Markey (D-Mass.), whose father died of lung cancer, they both also agreed there products were just as addictive as regular cigarettes.

Sen. Blumenthal said he also wanted to focus on a positive, asking both Healy and Weiss to join in specific discussions with other industry players about coming up with "protocols" to prevent youth marketing, including agreeing to avoid use of TV. Weiss said he would agree to talks, but not to ruling out TV ads because he said they were effective. But Blumenthal grew frustrated when Healy said he did not think an ad featuring Jenny McCarthy would appeal to kids.

Healy said he would discuss "all possibilities" of how not to market to kids. He also said he would agree to a ban on use of cartoon characters, but asserted his First Amendment rights when it came to not using Jenny McCarthy or rock concerts to promote the product.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.