FDA Vaping Regulations: Product Sampling

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We knew that, sooner or later, we would get additional details about the FDA vaping regulations. This month, October of 2017, the FDA released more specifics on the ban of free samples of e-cigarette products.

Vaping Regulations Update: FDA Releases Guidance on E-Cig Sampling

FDA Releases Guidance on E-Cig Sampling

The key takeaways from the FDA's new guidelines are as follows:

  • Tobacco products must be sold to consumers. This means that tobacco products can only be given out to consumers through a sales transaction.
  • Free samples cannot be handed out/shipped out in exchange for consumer contact information or for signing up for a mailing list.
  • Coupons and discounts are allowed. Buy-one get-one-free promotions are allowed, as long as they are part of a tobacco transaction. However, a promotion that offers the free product at a later date is prohibited.
  • Membership and reward programs are allowed, as long as the discounts are applied to a tobacco product purchase. If a reward program offers every 10th bottle of e-liquid for free, that 10th bottle can only be distributed if it is part of a tobacco purchase.
  • Contests and giveaways are prohibited under the FDA vaping regulations. However, if the contest gives away a coupon for a “free” product at the time of another purchase, it would be permissible.

    Resource: Prohibition of Distributing Free Samples

    The gist of all this is that distributors can not hand out anything for free unless that product is given away during another tobacco product transaction. This is great news for White Cloud customers, as well as all of the e-cigarette customers, because it means that manufacturers will still be able to offer samples and giveaways to customers, as long as it happens during another tobacco product purchase.

    Read More: FDA issues final guidance on distribution of free samples for e-cigarettes

    Remember the days when vape companies could go out to adult events to hand out free product to the smokers lining the streets? Or how about the promotion of vape product giveaways across social media channels? Or how about even just letting a potential new customer try out a flavor to find the right fit? Or how about being that potential new customer who is skeptical of vape flavors and thinks satisfaction can only be achieved if it tastes just like a cigarette, only to end up asking, “Why did I ever like the taste of a cigarette?” Well, those days will now be faded memories with the new FDA restrictions on product sampling.

    No More Sampling Vape Products

    FDA bans e-cigarette product sampling

    If only every industry was like the automobile industry, at least in the sense that you can “try before you buy”. Who knows how many countless consumer dollars have gone to waste from buying products that just weren’t…great. And when it comes to vaping, people are skeptical. There is always skepticism when it comes to the new and unknown. This is what made sampling vapor products great, both for the consumer and the vape company.

    Prior to FDA vaping regulations, sampling was one of the best marketing practices for vape companies, as they could give consumers a hands-on demonstration of how vaping works and help them find a device, flavor and nicotine strength that worked the best for them; thus, the consumers had the benefit of trying different products and flavors so they could make an informed decision when making the commitment to give vaping a try.

    Now that the FDA has taken authority over the vaping industry, product sampling has been thrown out the window. But still, there are some uncertainties as to what the FDA defines as “product sampling”. This is why we received a few questions about product sampling during our DeMISTified Webinar Series. Below you will find these questions with answers from the experts – or from the best research we could do on this gray area of FDA vaping regulations.

    What is the FDA ruling on sampling in store with or without nicotine?

    There is no real distinction between sampling between nicotine-containing products versus nicotine-free products. Although nicotine-free products do not contain nicotine (hence the term “nicotine-free”), they are still subject to the rules in carrying a warning that states, “This product is made from tobacco.

    The FDA’s clarification on this is: If the intention of nicotine-free products is to be used with a tobacco product (mods, e-cigs, vape pens, etc.), then free product and/or sampling is strictly prohibited, regardless of whether or not the product in question contains nicotine.

    This is another gray area when it comes to FDA vaping regulations. The rules specifically state that both product sampling and free product are prohibited; however, retailers can offer “product sampling” as long as they charge a fee. The FDA did not share specifics or a dollar amount with this fee, so we suggest you consult with your lawyer before moving forward with any form of product sampling.

    As for loyalty programs, as long as no free product or sampling is involved, then retailers should be able to continue with loyalty programs. For example, White Cloud’s Rewards Program allows customers to earn reward points based on purchases and other interactions. Customers may redeem their points for discounts towards future purchases and not for entirely free product.

    What is the minimum amount that a vendor can charge for samples?

    The FDA did not give a minimum amount for manufacturers and retailers to charge for samples. We recommend you consult an attorney for further direction. We can speculate, along with the experts, that if manufacturers and retailers choose to charge $1.00 for the product, this may spark red flags for the FDA.

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