A regulatory haze: Vape marketers are online, creating new headaches for feds

Reviewed by James Ives, M.Psych. (Editor)Nov 14 2019

In another, she gazes at the camera, her hair brushing against her right eye, her blouse slightly unzipped. You swipe left to see the vape juice she's using today: a mix of strawberry custard, sugar cookie and vanilla custard, paired with, this time, a black device (2,994 likes as of Nov. 2).

As Washington scrambles to crack down on the nascent vaping industry — particularly how it courts young users — so-called influencers, like Hannah, whose online personas exist in a haze of glamour and celebrity, are exposing critical gaps in how government officials regulate the marketing of electronic cigarettes. (Hannah did not respond to requests for an interview.)

Tobacco marketing researchers and anti-smoking advocates say regulators — namely the Food and Drug Administration and Federal Trade Commission — are ill equipped, relying on rules and standards that fail to understand modern marketing.

Eschewing the glossy magazines and television ads favored by tobacco giants, brands like Juul, Logic and Myblu have leveraged sophisticated internet campaigns, relying heavily on Instagram, the photo-sharing platform used by about three-quarters of American teenagers. They have marketed from their own accounts but now benefit from the free advertising provided by influencers: seemingly unaffiliated people who promote vapes to their sizable online audiences.

Their reach is global — a complication, since American regulations don't necessarily apply abroad.

Liam Gunther of Calgary, Alberta, has 49,000 followers on his account @chufflord. One video post, scored to the Etta James song "At Last," depicts his morning ritual. He runs his fingers through his bed head, turns to the right and smiles. In the next shot, the objects of his affection are on the nightstand: his Canadian flag-clad vaping pod system and e-liquid (both of which he promotes in the caption). "HOW VAPORS WAKE UP," it reads in all caps. "DO YOU GRAB YOUR PHONE OR VAPE FIRST??" (Gunther also declined to provide an interview.)

"All the rules for limitations on tobacco were written before social media existed," said Dave Dobbins, chief operating officer at Truth Initiative, which advocates for enhanced tobacco regulations. "It didn't even contemplate social media."

It's a gaping hole, especially since science increasingly suggests that nicotine vapes may harm young users' brains — and are serving as a transition to actual tobacco. Young users are more likely to adopt e-cigarettes when they engage with social media-based advertising.

Some influencers use the hashtag #nominors, which has over 10,400 posts and, in theory, sets a boundary. In practice, it can do the opposite and attract underage traffic.

The hashtag #vaping alone has more than 9 million posts, featuring elaborate smoke tricks, e-juice flavors, attractive models and stylish vaping devices.

While federal agencies play catch-up, researchers worry it's too little, too late.

In theory, a couple of rules govern marketing. Regardless of platform, e-cig advertisements cannot include demonstrably false statements — including unproven claims that the devices help people quit smoking, an argument often deployed by manufacturers and vape hobbyists. And on the internet, any marketing post must include a warning statement that says nicotine is addictive.

But, in practice, these restrictions mean little, researchers said.

"It's been kind of a free-for-all on social media with vaping companies," said Linnea Laestadius, an associate professor of health policy at the University of Wisconsin, who studies e-cig marketing. "Nobody's really touched it yet."

Prominent vape companies are savvy about skirting restrictions, said Dr. Robert Jackler, a physician at Stanford University who researches cigarette and e-cigarette advertising — which often suggests that vapes will help smokers quit, without being explicit.

"They advertise that they're useful in transitioning from traditional cigarettes to vaping products, often with proxy terms," Jackler said. "They use clever alternatives, like 'switch' or 'alternative' — without saying, switch from what."

That's one issue. The bigger factor is that the limited rules around social media haven't anticipated how, precisely, a service like Instagram works.

The big companies aren't posting much anymore — Juul's account has been closed for almost a year, and Myblu hasn't posted since last October. They don't need to.

Instagram users often trust influencers more than they do brands, research suggests, and their posts are more effective in recruiting young users. They sport tattoos, ear gauges and piercings. Models are pretty, slim and perfectly made up. The most popular accounts have tens of thousands of followers, views and likes.

Some are certainly independent enthusiasts. But many have contracts with major vaping companies, receiving money or free products in exchange for posts featuring particular products. Juul alone has recruited thousands of influencers, according to an investigation by the House of Representatives' Oversight Committee. (The company contests those findings, saying it has worked with fewer than 10 adult influencers.)

The FTC stipulates that any poster with corporate sponsorship must clearly disclose that relationship. But that rarely happens in a meaningful way.

Analyzing a random sample of 1,000 Instagram posts, Laestadius found that fewer than 10% of industry-backed influencers noted corporate sponsorship in their individual posts. Many simply mention the relationship in the bio of their profile page — easier to miss if you're just scrolling through a feed.

Federal authorities are now trying to crack down. The FDA and FTC sent warning letters this summer to four companies that it said had paid influencers for marketing but failed to follow federal guidelines. According to information provided by the FDA, such letters are the first step in taking enforcement actions, which could include financial penalties.

Many experts said it's unclear, though, whether these agencies have the bandwidth to enforce the existing rules — citing the number of accounts to follow and the sheer volume of activity. In fact, since Juul shut down its account, the number of Instagram posts with the company's hashtag has continued to climb. (As of publication, there were more than 624,000.) And that's only one of the relevant hashtags. Vapers use #vgod to share tricks — with 1.4 million posts and counting. There are 2.5 million posts under #cloudchasing, many of which are focused on vape tricks, and about 783,000 at #improof.

The sheer volume sparks another series of regulatory challenges.

Companies can disavow those posts as separate from their marketing strategy — even if they "lit the fire and fanned the flames" of that online community, Jackler said.

When asked about influencer-based marketing, Austin Finan, a Juul spokesman, said the company's social media team works to find "inappropriate social media content" and remove it from the platform.

"We agree these types of social media posts are a serious problem," he said.

Plus, the First Amendment makes it harder to craft regulations around marketing. Individual posters have specific protections that big companies lack. They could have more freedom, for instance, to say electronic cigarettes helped them quit smoking, Laestadius said, which Juul's account legally couldn't say. (E-cigarettes haven't undergone the FDA's process to be approved as medical quit aids.)

One example — from Hannah, @__justpeachyy: "I watched smoking destroy the health of my family, claiming lives that should be here today," she writes in one post. "When I found a way to quit, all I wanted was to see more lives changed, and helped others drop the habit too."

These challenges underscore why health officials and anti-smoking advocates are moving in another direction: to police platforms rather than posters by recruiting tech companies like Facebook (which owns Instagram), Snapchat and TikTok to remove content promoting vaping.

The American Medical Association in October asked Amazon, Microsoft, Instagram, Facebook and LinkedIn to prevent vape sales on their platforms. Matthew Myers, president of the Campaign for Tobacco-Free Kids, said his organization has had "constructive conversations" with Facebook and Instagram.

But none of those companies are legally required to make any changes — and, historically, have done so only in the face of public pressure, Jackler and Laestadius both noted.

"It's a really complicated environment. It's not as cut and dry as big tobacco," Laestadius said. "It's a combination of the big internet companies and the products — and our legal system isn't designed to handle this yet."