Sec. 201. Advertising of tobacco products
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It shall be unlawful— to market, advertise, or promote any electronic nicotine delivery system in a manner that appeals to an individual under 21 years of age; or to market, advertise, promote, or endorse, or to compensate any person for the marketing, advertising, promotion, or endorsement of, any electronic nicotine delivery system without clearly disclosing that the communication is an advertisement, unless the communication is unambiguously identifiable as an advertisement. A violation of paragraph
(1)shall be treated as a violation of a regulation under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) ) regarding unfair or deceptive acts or practices. The Commission shall enforce paragraph
(1)in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act ( 15 U.S.C. 41 et seq.) were incorporated into and made a part of this Act. Any person who violates such paragraph shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act. If the attorney general of a State has reason to believe a violation of paragraph
(1)has occurred or is occurring, the attorney general, in addition to any authority the attorney general may have to bring an action in State court under the law of the State, may bring a civil action in any court of competent jurisdiction to— enjoin further such violation by the defendant; enforce compliance with such paragraph; obtain civil penalties in the same amount as may be obtained by the Commission in a civil action under section 5(m) of the Federal Trade Commission Act ( 15 U.S.C. 45(m) ); or obtain damages, restitution, or other compensation on behalf of residents of the State. Before filing an action under subparagraph (A), the attorney general of a State shall provide to the Commission a written notice of such action and a copy of the complaint for such action. If the attorney general determines that it is not feasible to provide the notice described in this subparagraph before the filing of the action, the attorney general shall provide written notice of the action and a copy of the complaint to the Commission immediately upon the filing of the action. On receiving notice under subparagraph
(B)of an action under subparagraph (A), the Commission shall have the right— to intervene in the action; upon so intervening, to be heard on all matters arising therein; and to file petitions for appeal. If the Commission has instituted a civil action for violation of paragraph
(1)(referred to in this clause as the Federal action ), no attorney general of a State may bring an action under subparagraph
(A)during the pendency of the Federal action against any defendant named in the complaint in the Federal action for any violation of such paragraph alleged in such complaint. Nothing in this section shall prevent the attorney general of a State from bringing an action under State law for acts or practices that also violate paragraph (1). If the attorney general of a State has authority to bring an action under State law for acts or practices that also violate paragraph (1), the attorney general may assert the State-law claim and the claim for violation of such paragraph in the same civil action. In addition to civil actions brought by attorneys general under subparagraph (A), any other consumer protection officer of a State who is authorized by the State to do so may bring a civil action under such subparagraph, subject to the same requirements and limitations that apply under this paragraph to civil actions brought by attorneys general. The Commission may promulgate regulations under section 553 of title 5, United States Code, to implement paragraph (1). Not later than 2 years after the date of the enactment of this Act, and annually thereafter, the Commission shall submit to Congress a report relating to each category of products described in paragraph
(2)(or a single report a portion of which relates to each such category) that contains the following: Information on domestic sales and advertising and promotional activity by the manufacturers that have the largest market shares of the product category. Such recommendations for legislation as the Commission may consider appropriate. The categories of products described in this paragraph are the following: Cigarettes. Cigars. Smokeless tobacco. Electronic nicotine delivery systems. Nothing in this section may be construed in any way to limit the Commission’s authority under any other provision of law. In this section: The term cigar means a tobacco product that— is not a cigarette; and is a roll of tobacco wrapped in leaf tobacco or any substance containing tobacco. The term cigarette has the meaning given such term in section 900 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 387 ). The term Commission means the Federal Trade Commission. The term electronic nicotine delivery system — means any electronic device that delivers nicotine, flavor, or another substance via an aerosolized solution to the user inhaling from the device (including e-cigarettes, e-hookah, e-cigars, vape pens, advanced refillable personal vaporizers, and electronic pipes) and any component, liquid, part, or accessory of such a device, whether or not sold separately; and does not include a product that— is approved by the Food and Drug Administration for sale as a tobacco cessation product or for another therapeutic purpose; and is marketed and sold solely for a purpose described in clause (i). The term endorse means to communicate an advertising message (including a verbal statement, demonstration, or depiction of the name, signature, likeness, or other identifying personal characteristics of an individual or the name or seal of an organization) that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by such party are identical to those of the sponsoring advertiser. The term nicotine has the meaning given such term in section 900 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 387 ). The term smokeless tobacco has the meaning given such term in section 900 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 387 ). The term tobacco product has the meaning given such term in section 201 of the Federal Food, Drug, and Cosmetic Act ( 21 U.S.C. 321 ).
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