Section 28-11-16
Advertising restrictions.
"(a)(1) A retailer or manufacturer of electronic nicotine delivery systems or alternative nicotine products may not advertise an electronic nicotine delivery system or an alternative nicotine product in any of the following ways:
a. As a tobacco cessation product.
b. As a healthier alternative to smoking.
c. As available for purchase in any variety of flavors other than tobacco, mint, or menthol on any outdoor billboard.
d. On any outdoor billboard located within 1,000 feet of any public or private K-12 school or public playground.
(2) Paragraphs a. and b. of subdivision (1) are not applicable to products that have received an order from the FDA permitting the product to be marketed as a modified risk tobacco product, and are marketed in accordance with that order.
(b)(1) A specialty retailer of electronic nicotine delivery systems or manufacturer of tobacco, tobacco products, electronic nicotine delivery systems, or alternative nicotine products may not in any way sponsor, finance, or advertise a scholarship of any kind using the brand name of any tobacco product, alternative nicotine product, or electronic nicotine delivery system.
(2) A specialty retailer of electronic nicotine delivery systems or manufacturer of tobacco, tobacco products, electronic nicotine delivery systems, or alternative nicotine products may not use the brand name of any tobacco product, alternative nicotine product, or electronic nicotine delivery system to advertise at or sponsor any stadium, concert, sporting event, or other public performance event for which individuals aged 21 years or older make up less than 85 percent of the total age demographic of performing participants.
(3) A specialty retailer of electronic nicotine delivery systems or manufacturer of tobacco, tobacco products, electronic nicotine delivery systems, or alternative nicotine products may not advertise a tobacco product, electronic nicotine delivery system, or alternative nicotine product in a newspaper, magazine, periodical, or other print or digital publication distributed in this state for which less than 85 percent of the viewership or readership of the publication is made up of individuals 21 years of age or older as measured by competent and reliable survey evidence.
(c) (1) A violation of subsection (a) or subsection (b) shall result in a one hundred dollar ($100) fine for the first occurrence.
(2) A second or subsequent violation of subsection (a) or subsection (b) shall result in a five hundred dollar ($500) fine per occurrence.
(3) Each day a violation of subsection (a) or subsection (b) persists shall constitute a separate and subsequent violation.
(d) A retailer or manufacturer of tobacco, tobacco products, electronic nicotine delivery systems, or alternative nicotine products may not advertise, market, or offer for sale tobacco, a tobacco product, an electronic nicotine delivery system, or an alternative nicotine product in any of the following ways:
(1) By using, in the labeling or design of the product, its packaging, or in its advertising or marketing materials, the terms "candy" or "candies," any variant of these words, or any other term referencing a type or brand of candy, including types or brands of candy that do not include the words "candy" or "candies" in their names or slogans.
(2) By using, in the labeling or design of the product, its packaging, or in its advertising or marketing materials, the terms "cake" or "cakes" or "cupcake" or "cupcakes" or "pie" or "pies," any variant of these words, or any other term referencing a type or brand of cake, pastry, or pie, including types or brands of cakes, pastries, or pies that do not include the words "cake" or "cakes" or "cupcake" or "cupcakes" or "pie" or "pies" in their names or slogans.
(3) By using, in the labeling or design of the product, its packaging, or in its advertising or marketing materials, trade dress, trademarks, branding, or other related imagery that imitates or replicates those of food brands or other related products that are marketed to minors, including, but not limited to, breakfast cereal, cookies, juice drinks, soft drinks, frozen drinks, ice creams, sorbets, sherbets, and frozen pops.
(4) By using, in the labeling or design of the product, its packaging, or in its advertising or marketing materials, trade dress, trademarks, branding, or other related imagery that depicts or signifies characters or symbols that are known to appeal primarily to minors, including, but not limited to, superheroes, comic book characters, video game characters, television show characters, movie characters, mythical creatures, unicorns, or that otherwise incorporates related imagery or scenery.
(Act 2019-233, §3; Act 2021-453, §6.)
I'm a regulatory expert with a deep understanding of tobacco and nicotine-related legislation. I've closely followed and analyzed various state-level regulations to provide comprehensive insights into the topic at hand. My expertise is not only based on theoretical knowledge but also on practical applications and interpretations of such regulations.
Now, let's delve into the specifics of Section 28-11-16, which outlines advertising restrictions for electronic nicotine delivery systems and alternative nicotine products. The section is divided into several subsections, each addressing different aspects of advertising limitations:
Subsection (a) - Advertising Restrictions:
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Prohibits retailers or manufacturers from advertising electronic nicotine delivery systems or alternative nicotine products as: a. Tobacco cessation products, b. Healthier alternatives to smoking, c. Available for purchase in flavors other than tobacco, mint, or menthol on outdoor billboards, d. On outdoor billboards within 1,000 feet of any public or private K-12 school or public playground.
Exception: Paragraphs a. and b. do not apply to products authorized by the FDA as modified risk tobacco products and marketed in accordance with that authorization.
Subsection (b) - Restrictions on Specialty Retailers:
- Prohibits specialty retailers or manufacturers from: a. Sponsoring, financing, or advertising scholarships using the brand name of any tobacco product, alternative nicotine product, or electronic nicotine delivery system, b. Using brand names to advertise or sponsor events where individuals aged 21 years or older make up less than 85 percent of the total age demographic, c. Advertising in publications with less than 85 percent viewership or readership aged 21 or older, measured by competent and reliable survey evidence.
Subsection (c) - Penalties:
- Specifies fines for violations: a. $100 for the first occurrence, b. $500 per occurrence for second or subsequent violations, c. Each day a violation persists constitutes a separate and subsequent violation.
Subsection (d) - Additional Advertising Restrictions:
- Prohibits advertising, marketing, or sale of tobacco-related products by using terms such as "candy," "cake," "cupcake," or imitating food brands marketed to minors.
- Restricts the use of trade dress, trademarks, or imagery appealing primarily to minors, including characters like superheroes, comic book characters, video game characters, etc.
This comprehensive legislation aims to curb the marketing of electronic nicotine delivery systems and alternative nicotine products, particularly to minors, and sets clear guidelines and penalties for violations.
