Ohio Advertising Regulations: Tobacco Products, E-Cigs, Marijuana and Hemp

Tobacco product advertising on radio and television has been regulated primarily by the Federal government. Federal laws on tobacco product advertising are found in 15 U.S.C. § 1331 et seq. These sections, known as the Federal Cigarette Labeling and Advertising Act of 1969 (“FCLAA”), were promulgated by Congress in order to “establish a comprehensive Federal program to deal with cigarette labeling and advertising…” 15 U.S.C. § 1331. In 1986, Congress enacted additional legislation, known as the Comprehensive Smokeless Tobacco Health Education Act (“CSPHEA”), which regulates the advertising of smokeless tobacco products. 15 U.S.C. § 4401 et seq. Together, these statutes make it unlawful to advertise cigarettes, little cigars, and smokeless tobacco products “on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission,” including radio and television broadcast stations. 15 U.S.C. § 1335; 15 U.S.C. § 4402(c).

The radio and television broadcast ban on certain tobacco products is monitored by the Federal Communications Commission (“FCC”). The FCC refers complaints in this area to the Consumer Protection Branch of the United States Department of Justice (the “DOJ”), which has primary responsibility for enforcing tobacco advertising laws. 28 C.F.R. § 0.45(j). Any violation of the tobacco advertising restrictions is guilty of a misdemeanor and punishable by a fine not to exceed $10,000. 15 U.S.C. § 1338. Although the DOJ does not publish formal rules or guidelines regarding tobacco product advertising, it does issue informal advisory letters that provide guidance regarding how the agency intends to enforce various regulations pertaining to television and radio advertising.

States may also impose additional restrictions on tobacco product advertising, but these laws cannot be more sweeping than those already approved by the Federal government (see Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 547-51 (2001), where the United States Supreme Court struck down a Massachusetts statute restricting outdoor tobacco advertising as a violation of the First Amendment’s guarantee of freedom of speech). However, Ohio has not enacted any laws specifically regulating tobacco advertising.

In November 1998, tobacco product manufacturers R.J. Reynolds, Philip Morris, Inc., Brown & Williamson Tobacco Corp., Lorillard Tobacco Co., and Liggett Group, Inc. entered into settlement agreements with the State of Ohio and 45 other states, four territories, the District of Columbia and the Commonwealth of Puerto Rico, ultimately settling litigation brought by those jurisdictions against those tobacco companies. These agreements, known as the Master Settlement Agreement (“MSA”), impose additional advertising restrictions on these five companies. These restrictions are not television or radio broadcast-related, but deal with other advertising areas including billboards and sponsorships.

Cigarettes, smokeless tobacco and little cigars may not be advertised on radio and television. 15 U.S.C. § 1335; 15 U.S.C. § 4402(c).

Cigars and pipe tobacco, on the other hand, may be advertised, subject to the restrictions and requirements referenced in questions 3, 5 and 6 below.

Yes. A number of cigar manufacturers entered into a settlement agreement with the Federal Trade Commission (“FTC”) which, among other things, imposes a fine for airing cigar advertisements which do not include a health risk disclosure. For cigar companies subject to the FTC settlement agreement, the following five statements must be rotated quarterly in cigar advertisements:

SURGEON GENERAL WARNING: Cigar smoking can cause cancers of the mouth and throat,
even if you do not inhale.
SURGEON GENERAL WARNING: Cigar smoking can cause lung cancer and heart disease.
SURGEON GENERAL WARNING: Cigars are not a safe alternative to cigarettes.
SURGEON GENERAL WARNING: Tobacco smoke increases the risk of lung cancer and heart disease, even in nonsmokers.
SURGEON GENERAL WARNING: Tobacco Use Increases the Risk of Infertility, Stillbirth and
Low Birth Weight.

Yes. The FCLAA and CSPHEA were enacted prior to the widespread use of the Internet and do not specifically prohibit the advertising of cigarettes, little cigars or smokeless tobacco on the Internet. In addition, the MSA does not cover Internet advertising. The FTC settlement agreement with cigar manufacturers does not expressly prohibit cigar advertising on the Internet.

Advertisements for such products on a station website should, however, include the appropriate warning statement.

Generally yes, although there is no “bright line” test for determining what is permitted and what is not. Smoke shop advertisements are not specifically prohibited by Federal law. However, such advertisements have been the subject of numerous informal opinions of the DOJ.

A sampling of these DOJ opinions suggest that advertisements should not: (i) use the words, “cigarettes,” “little cigars” or “smokeless tobacco;” (ii) use brand names of such products; (iii) use or position words to suggest or promote the sale of cigarettes, little cigars or smokeless tobacco by the retailer.

Thus, examples of problem advertisements have included: the word “cigarette” in a store’s name; listing products which cannot be advertised as items sold at a store; listing brand names of products which cannot be advertised as items sold at a store; words such as “cartons” or “packs” associated with products which cannot be advertised; and, general phrases such as “meet all of your smoking needs.”

Smoke shop advertisements that do not reference (directly or indirectly) tobacco products which cannot be advertised should be legal. Advertisements for retailers that only feature items associated with smoking, such as humidors, pipes, and rolling paper, should also be legal.

Because clear guidance is not possible, broadcast stations should exercise caution when considering advertisements for retailers that specialize in tobacco products.

There are no Ohio statutes or rules governing the advertising of vaping products or electronic cigarettes (or e-cigs). Certain Ohio statutes restricting the minimum age of persons seeking to purchase vaping products or electronic cigarettes may influence the placement of broadcast advertising to avoid programming that pertains to younger listeners/viewers.

In addition, the Food and Drug Administration (the “FDA”) does have regulatory authority over vaping products and electronic cigarettes (along with dissolvables, gels, pipes, water pipes, hookah tobacco, pipe tobacco and related nicotine products), and its regulatory approach to these products is continuing to evolve. For example, certain flavored reusable vaping devices are now prohibited by the FDA with only tobacco and menthol flavors being allowed, and only in the case of FDA-authorized e-cigarette manufacturers.

Further, thus far the FDA has only authorized a limited number of e-cigarette manufacturers, all of which have been subject to specific media advertising restrictions such as required audience composition figures and restrictions in advertising testimonials by sports figures, celebrities, or any person with special appeal to youth. Examples of other issues of which to be aware include: prohibitions on free samples; not making any health or safety related claims; not using descriptors such as “light,” “mild,” “low,” or similar language; not promoting vaping products or electronic cigarettes as smoking cessation products; and being aware of the following warning requirement for electronic cigarettes, dissolvables, hookah tobacco, pipe tobacco and other similar nicotine products: “WARNING: This product contains nicotine. Nicotine is an addictive chemical.” Due to the specificity and changing scope of the federal requirements on these products, stations should contact the OAB’s FCC Hotline at 888-705-0678 for further guidance.

Because the DOJ has suggested that the use of the word “cigarettes” in an advertisement is prohibited, it would seem that advertising “roll your own” cigarette-making machines may be problematic. However, the FCC manual “The Public and Broadcasting,” September 2021 edition, states that the advertising of smoking accessories, cigars, pipes, pipe tobacco or cigarette-making machines (emphasis added) is not prohibited. Accordingly, it appears that the safest course of action is for stations to consult with their FCC counsel regarding any proposed advertisement of “roll your own” cigarette machines.

Radio and television broadcast advertising of medical marijuana in Ohio is prohibited for medical marijuana dispensaries under OAC Rule 3796:6-3-24 and for medical marijuana cultivators, processors and testing laboratories under OAC Rule 3796:5-7-01. Copies of both rules are in the Appendix at the end of this section.

Further, because virtually all marijuana remains illegal under federal law, we recommend against the advertising of marijuana or any related products because the FCC may take action adverse to the station at the time of the renewal of such station’s license, and/or the possibility of being subject to federal criminal charges under a theory of aiding and abetting an illegal activity.

Prior to December 2018, many hemp products—including hemp-derived cannabidiol (“CBD”) products—were classified as illegal “marijuana” substances under both federal law and Ohio law. In December 2018, President Trump signed into law the 2018 Farm Bill which decriminalized the production and sale of certain hemp and CBD products under federal law. Additionally, the 2018 Farm Bill provided that states could adopt their own regulatory regime to regulate the production, use and sale of hemp and CBD products.

Ohio adopted such a regulatory regime in July 2019 by enacting Senate Bill 57, which (i) decriminalized hemp and hemp products—including CBD—that meet certain definitions, (ii) authorized Ohio to submit a plan to the United States Department of Agriculture (the “USDA”) to be the primary regulator of hemp and CBD products in Ohio, and (iii) set forth a regulatory framework for the processing and cultivation of hemp in Ohio. The law excludes “hemp” from the definition of “marijuana” and defines “hemp” to mean the plant Cannabis sativa L. and any part of that plant, including the seeds and all derivatives, extracts, cannabinoids, isomers, acids, salts and salts of isomers, whether growing or not, with less than 0.3% THC (tetrahydrocannabinol, which is the psychoactive compound of the plant).

Ohio submitted its plan to the USDA, and the USDA approved the plan on December 27, 2019. Also, the Ohio Department of Agriculture (the “ODA”) promulgated rules regarding the cultivation, processing and laboratory testing of hemp, which rules went into effect on January 31, 2020. There are no provisions regarding the advertising of hemp or CBD products in the Ohio law, the USDA-approved Ohio plan or the ODA rules.

Nevertheless, there are several potential areas of risk a station must consider before determining whether to air any specific advertisement for hemp or hemp-derived CBD products.

These areas include (i) rules promulgated by the United States Food and Drug Administration (the “FDA”) regarding the marketing of hemp and hemp-derived CBD in certain products, (ii) the source and type of hemp or hemp-derived CBD products being advertised, (iii) the allocation of risk between the station and the advertiser, and (iv) avoiding complaints during the FCC license renewal process.

Here are some non-exclusive factors that stations may wish to consider:

• FDA Issues. The FDA has been cracking down on the marketing of hemp-derived CBD oil when it is an ingredient in a product that is intended to be ingested, such as a food or beverage, or when it is marketed as a “drug” under FDA rules. The FDA rules are relatively complex, but as a general rule, the FDA prohibits advertisers from making claims about any therapeutic benefits of CBD (e.g., “We have CBD products that will cure your chronic pain and depression.”). Indeed, the FDA has sent warning letters to various CBD retailers regarding these type of claims. In addition, the Commissioner of the FDA has stated that the FDA will prosecute manufacturers of products containing CBD if they make health and wellness claims that the FDA views as egregious.

Further, the FDA has issued numerous warning letters to companies, which the FDA believes are marketing and/or selling CBD products in ways that violate federal law. Moreover, the Ohio Attorney General and 32 other state attorneys general sent a letter to the FDA urging it to conduct further research into the benefits and risks of the use of CBD products. The letter also indicated that the attorneys general are concerned that companies soliciting CBD products may rely on “misleading advertising” to appeal to consumers. In short, the FDA and other regulators have repeatedly demonstrated their interest in CBD product advertising and have taken active, affirmative steps to address what they view as problematic advertising and marketing content and practices.

• Less than 0.3% THC. Because the decriminalization of hemp specifically applies to products—including CBD—with less than 0.3% THC, there remains a risk that stations may inadvertently advertise products that do not meet that strict definition. Other than the representation of the advertiser, stations will have no way of knowing whether the products are, in fact, legal hemp or CBD products. For this reason, stations seeking to mitigate risk from civil or criminal exposure should consider obtaining certifications and/or indemnifications from the advertiser regarding the products they are advertising. This option is discussed further below.
• Ban on “Cigarette” Marketing; Illegal to Advertise Medical Marijuana. As discussed elsewhere in this Guide, it is important to remember that there are federal restrictions that apply to the advertising of cigarettes and certain other tobacco products, and the decriminalization of hemp did not change any of those restrictions. Also, as noted above in question 8, Ohio already has a rule prohibiting the broadcast advertising of medical marijuana.
• Enforcement/Complaints. Although stations that broadcast ads for hemp or hemp-derived products may not be the initial targets of state or federal authorities for unlawful marketing claims or the sale of unlawful products generally, there is at least a risk of potential secondary liability (i.e., aiding and abetting). The ODA has indicated that it will randomly test CBD products to determine if they meet the less-than 0.3% THC legal standard and are otherwise in compliance with the Ohio law. If a station were to advertise a CBD product that was determined to be illegal under the Ohio law or under federal law, it is possible that the ODA or other authorities could take action against the station alleging it aided and abetted the illegal sale of the unlawful product.

Another, and perhaps a more practical, risk is that airing advertisements that violate state or federal law could generate complaints to the FCC and, as a result, become a potential issue at license renewal time. While this same concept could be applied to any advertising that could be alleged to be unlawful, the focus by multiple regulators on hemp and hemp-derived CBD may present a somewhat heightened risk if the underlying products or ad copy actually do violate federal or state law.

• Certifications/Indemnifications. As mentioned above, given the varying issues regarding the products being advertised and the content of those advertisements, stations considering accepting hemp or hemp-derived CBD ads should also consider whether to require advertisers to make certain warranties or certifications regarding the lawfulness of their products and advertisements and/or agree to indemnify the station against any losses suffered by the station as a result of the advertisements. Although such provisions would not necessarily immunize stations from enforcement actions, they may at least demonstrate reasonable diligence and possibly mitigate any potential losses.

The bottom line is that each station should consult with its own legal counsel to assess the various risks associated with hemp and CBD advertising given the increased scrutiny of these products by regulatory authorities.