18 Jun Warning Label Requirements for Retailer Advertising
Beginning on 8/10/2018, all retailers must include FDA warnings in advertisements for cigars and pipe tobacco per the new requirements (including the requirement to rotate cigar warnings in accordance with an FDA-approved plan). Below, is a brief review and IPCPR opinions on what retailers should know.
Who is responsible for warning labels in advertising?
In general, retailers are responsible only for advertisements that they create. This includes compliance with placement and formatting requirements (see below). It also includes compliance with the requirement to rotate the warning statements in accordance with an FDA-approved warning plan.
Retailers are not responsible for advertisements (including posters, shelf talkers etc…) created by any other parties (manufacturers, distributers, importers). However, retailers may not display advertisements provided by other parties that do not contain a “health warning*” or that contain a “health warning*” that they have altered in a material way. This includes advertisements created and received prior to 8/10/2018.
*It’s important to note that the regulations do not define what qualifies as a “health warning” for these purposes, but legacy FTC cigar health warnings, California health warnings, or improperly executed FDA warnings could qualify.
Does this cover all forms of advertising created for or by retailers?
Yes. This includes, for example, advertisements run via print, television, websites, and social media platforms like Twitter, Facebook and Instagram. Warning requirements also apply to radio advertisements, however the formatting specifications apply only to advertisements with a visual component. The FDA has yet to issue promised guidance on compliance with these requirements for “unique” media formats. In the meantime, IPCPR will provide additional guidance on steps retailers can take to comply with FDA warning requirements on social media and on websites.
What if I haven’t submitted a Warning Plan?
As a benefit to IPCPR Members, the association is offering coverage under an FDA-approved warning plan for retailers. IPCPR members simply need to review the plan and opt into it.
What are the specific formatting requirements for a warning statement in advertising?
- Appear in the upper portion of the area of the advertisement within the trim;
- Occupy at least 20 percent of the area of the advertisement;
- Appear in at least 12-point font size that ensures that the required warning statement occupies the greatest possible proportion of the warning area set aside for the text required;
- Appear in conspicuous and legible Helvetica bold or Arial bold type (or other similar sans serif fonts) and in black text on a white background or white text on a black background in a manner that contrasts by typography, layout, or color, with all other material on the advertisement;
- Be capitalized and punctuated consistent with the relevant warning statement as it appears in the rule;
- Be centered in the warning area in which the text is required to appear and positioned such that the text of the required warning statement and the other textual information in the advertisement have the same orientation; and
- Be surrounded by a rectangular border that is the same color as the text of the required warning statement and that is not less than 3 mm or more than 4 mm.
IPCPR will be providing example advertising compliant with FDA requirements in the coming weeks. In the meantime, for any questions, please contact Daniel Trope, IPCPR Senior Director of Federal Government Affairs firstname.lastname@example.org.