Effective June 2010, FDA issued advertising and marketing restrictions under the Tobacco Control Act. Among those requirements is a provision prohibiting tobacco manufacturers, distributors and retailers from “sponsoring” any “athletic, musical, artistic, or other social or cultural event, or any entry or team in any event” in the brand name, logo or selling message of any cigarette or smokeless tobacco brand.” Manufacturers, distributors and retailers are permitted to conduct such sponsorships in their corporate name, but only if the corporate name was registered and in use before January 1, 1995. (The legality of this grandfathering provision seems doubtful.)
Since FDA issued these regulations, a number of issues have arisen regarding what constitutes an unacceptable “sponsorship.” Clearly, a tobacco product manufacturer cannot be an “official sponsor” of such events, if the sponsorship is in the company’s brand name. It seems equally clear that a tobacco company remains free to conduct advertising, sales or sampling at such events. (Indeed, smokeless tobacco sampling is expressly permitted under FDA’s regulations.) It is conceivable that FDA could raise questions when the level of advertising at sporting or cultural events is so prevalent that it could be deemed a “sponsorship.”
What if a tobacco company calls itself a “partner” in a cultural event, as opposed to a “sponsor”? The two seem to be functionally indistinguishable, and FDA definitively answered this question in an August 26, 2011 warning letter to Santa Fe Natural Tobacco Company. As indicated in the warning letter, Santa Fe apparently was listed as a “partner” on the website of the Voodoo Experience music and art festival. Santa Fe’s website listed the Voodoo Experience as one of the events it would attend. The letter warns that the statements render Santa Fe’s products misbranded under the Tobacco Control Act, and directs Santa Fe to make appropriate corrections. The offending statements now appear to have been removed from both websites.
We routinely advise our clients regarding advertising and marketing requirements under the Tobacco Control Act and implementing regulations. If you have any questions about whether certain advertising or marketing may implicate these requirements, please let us know.