FDA ‘Jumps The Shark’ With Claims About Misleading Packaging

Carl V. Phillips | Contributor

The FDA just announced new targets of its attacks on “misleading” packaging. With that, it effectively conceded this campaign is not really about accidental poisoning risk, as originally claimed. Rather, it is an absurd attempt to bolster its baseless claims of marketing to children.

As previously reported, the initial round of the campaign was mostly directed at a few e-liquid containers that could genuinely be mistaken for food or drink, including one that looks like a juice box. The risk of serious accidental poisoning from e-liquid is trivial, but it still makes sense to forbid such packaging and eliminate needless risk. However, it was clear that the FDA was attempting to leap from this risk to their claims about marketing to children. All the rhetoric surrounding the campaign has focused on marketing, not accidents. Several of the products targeted in the initial round did not genuinely resemble food products but merely had festive packaging. The FDA found candy products with somewhat similar packaging; they could just have easily found similar packaging of party balloons or fidget spinners.

The fundamental problem with the FDA’s innuendo is that it is finding packages that might catch the eye of a 7-year-old, who would not be the market for vapor products. The teenagers who are the current topic of obsession for anti-vape activists are not going to be impressed by these packages. FDA Commissioner Scott Gottlieb embarrassingly described this as marketing to and “targeting” children. But no manufacturer would bother to try to market to 7-year-olds even if they actually wanted to sell to them. What, exactly, would be the point?

The new round of attacks on packaging makes clear that the FDA does not understand the difference between minors of ages 7 and 17. Either that or it does understand and is engaged in a concerted campaign of government propaganda to trick others into believing there is no difference.

The FDA’s new announcement went out to the press and other subscribers with the subject line, “FDA warns additional companies to stop misleading kids.” But many products they added to the hit list have no chance of misleading anyone. One was a product called “Frank ‘N Vape,” that has imagery that resembles that of Frankenberry breakfast cereal. This seems to be a slam-dunk trademark violation. But rather than being misleading, it presumably conveys accurate information (i.e., this e-liquid tastes like Frankenberry cereal). No one is going to believe the e-liquid vial is breakfast cereal, nor even that there is some affiliation. There is some chance that a young child, a fan of the cereal, might accidentally poison himself with the e-liquid. This concern is in keeping with the original rationalization for the FDA’s campaign. But the FDA’s message was that this is part of “a sustained campaign to address all aspects of youth access and appeal of tobacco products, and in particular, e-cigarettes.” Tobacco controllers typically use the word “youth” to refer to an age range of about 16 to 25.

The other new entry is even more comical. The FDA would have us believe that “Unicorn Cakes” e-liquid, which features cartoon pictures of unicorns, imitates the “My Little Pony” cartoons. Within the realm of cel-shaded pictures of unicorns — and that is a pretty broad realm — it is difficult to see how there could be less resemblance between the two. Moreover, since the ostensible point of this campaign is confusion with food products, in their list of side-by-side images of products, FDA had to label still images from the cartoon series as “food products.” It turns out there are a few “My Little Pony”-branded candies, though they are pretty obscure. (This reporter, who is more familiar with My Little Pony than he would prefer, had never heard of them). In any case, these candies were not the image the FDA presented. The FDA’s apparent excuse for calling a television series a food product is that the e-liquid unicorns are eating something that seems to be pancakes, and they hunted through the countless hours of the series and found a scene of characters eating pancakes. Um, yeah.

Keep in mind that the FDA brought its enormous resources to bear on this matter, and the commissioner himself has been publicly communicating about it. Yet these are among the 11 e-liquid products, out of the tens-of-thousands that exist, that they thought best made their case. Beyond the juice box form factor, all the targets are at least a bit dubious in terms of whether they would even catch the eyes of children let alone confuse them. Some are far beyond dubious.

Even if the FDA were right and these products were attracting the interest of young children, that does not support their real message: these (and thus, of course, all) vapor products are being marketed to the older minors who might actually buy them. Few 16-year-olds are fans of My Little Pony. They are no more likely to be a fan of Frankenberry or grape soda than are adults of all ages.

Perhaps if such imagery was commonplace someone could argue that it is a grand plan to prep today’s 7-year-olds to be next decade’s vapers, as was claimed for the Joe Camel cartoon character. But few vapers have even heard of any of this handful of products, much less have shown them to their kids. That is basically the only way young children could ever see them; these are little producers who are not going to pay to have a graphic display in convenience stores, let alone other advertising.

Moreover, no one in an industry, with the possible exception of one of the top manufacturers, cares about increasing category-wide sales a decade in the future shows. Even sales of one’s own product that far out are of little no concern for most businesses and products (including Camel). This is even more true for the category as a whole, especially for a business that represents about 0.01% of the category. It is still more true for vapor product companies, who face the prospect of imminent extinction. The notion that small e-liquid companies and any interest in “targeting” young children is beyond absurd. 

[Correction: A previous version of this article claimed that a soda can-shaped product on the FDA’s list was only 60 ml in size and therefore unlikely to be mistaken for a soda can. In fact, the outer packaging of that product is roughly the size of a standard soda can. A normal 60 ml bottle, which could not be mistaken for a can of soda, is packaged inside that.]

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Carl V. Phillips

Contributor

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