Under federal law, a “modified risk tobacco product” is a product whose label or advertising represents that the product presents lower risk of tobacco-related disease or is less harmful than other commercially-available products. 21 USC 387k. In order to legally market a product as a modified risk tobacco product (MRTP), an order must first be issued by the FDA permitting the marketing as a MRTP. To date, FDA has not issued a single MRTP order.

According to the FDA’s Warning Letter, found here, JUUL representatives allegedly made statements suggesting its products were safe and were safer than cigarettes. If made, these statements would cause JUUL’s products to be marketed as MRTPs, in violation of federal laws and FDA requirements. As with all warning letters issued by the FDA, the Company has 15 business days to respond to the allegations.

The FDA regulates tobacco products under the Family Smoking Prevention and Tobacco Control Act (Act), which was signed into law by President Obama in 2009. The Act grants FDA the authority to regulate various tobacco products, including electronic delivery nicotine systems or “ENDS”, like JUUL products. ENDS and all covered tobacco products must meet FDA requirements, including labeling and marketing requirements and in many cases premarket notification or authorization requirements. If you have questions about marketing tobacco products, please contact us at contact@sglawfl.com.

Getting a FDA Warning Letter for your tobacco business can be confusing. Responding to a FDA Tobacco Warning Letter can be even more confusing and time-consuming for a business. Although people often look to us for a sample response for their FDA Tobacco Warning Letter, unfortunately it is not that simple. While there are some common “Do’s” and “Don’ts”, there is no one-size-fits-all approach in responding to a FDA Tobacco Warning Letter. Accordingly, what we do is offer a tailored plan for responding to and resolving FDA Tobacco Warning Letters.

First, it is important to understand the underlying issues that prompted the Letter. Was it failure to check identification and underage sales or is the problem with labeling, etc.? Depending on the exact issues cited in the Tobacco Warning Letter, there are different measures that should be taken in order to adequately respond. For example, where there are labeling issues, label reviews and updates may be necessary in addition to submitting a response to the FDA to the Tobacco Warning Letter. If the issue is underage sales, there are other corrective measures that can help you bring your business into compliance with FDA requirements.

Once the issues that prompted the Tobacco Warning Letter are fully understood and corrective actions are completed, then a complete response detailing these measures must be addressed to the FDA. In Response to the FDA Tobacco Warning Letter, the Agency will want to see that all regulatory requirements are being addressed in a proactive way and that the business will be able to follow all regulations moving forward. Because these letters are often lengthy and technical in nature, we often provide these services to clients to help them ensure that they address any pending matters that may be of concern to FDA and allow them to get back to business.

For more information about responding to a Tobacco Warning Letter or how we may be able to help, you can contact us at (866)785-0873 or contact@sglawfl.com.

The FDA has been aggressively enforcing the Tobacco Control Act, largely against convenience stores and gas stations selling tobacco products in violation of the Tobacco Control Act by issuing tobacco warning letters quite frequently over the past several months. FDA regulations applicable to tobacco retailers prohibit the sale of cigarettes and smokeless tobacco to any person younger than 18 years of age, and impose other restrictions on labeling, marketing, and advertising of cigarettes and smokeless tobacco.

When a FDA compliance inspection reveals a violation, the tobacco retailer first receives a tobacco warning letter. A tobacco warning letter, like other FDA warning letters, contains a list of all of the violations observed during the inspection and directs the tobacco retailer to respond in writing with a plan to correct the observed violation. After receiving a tobacco warning letter, a business must respond to the FDA within 15 working days. The response to the FDA should include an explanation of the steps that the business will take to correct the violations and to prevent future violations, as well as the current contact information for the business.

After the receipt of a tobacco warning letter, if a tobacco retailer fails to correct the violation, it may result in the FDA taking regulatory action without any further notice to the tobacco retailer. Under the FD&C Act, as amended by the Tobacco Control Act, the FDA is authorized to issue a civil money penalty, no-tobacco-sale order, seizure, criminal penalties, and/or an injunction, which would prohibit the business from further tobacco sales.

Tobacco Control Act and Tobacco Retailers

The FDA can issue tobacco warning letters due to a number of different violations of the requirements set forth in the Tobacco Control Act. In particular, the regulations:

• Prohibit the sale or distribution of brand-identified promotional nontobacco items such as hats and tee shirts;
• Prohibit the sponsorship of sporting and other events, or teams;
• Prohibit free samples of cigarettes and restrict distribution of free samples of smokeless tobacco to “qualified adult-only facilities;”
• Require retailers to verify a purchaser’s age by photographic identification.

• Prohibit opening cigarette or smokeless tobacco packages to sell products in smaller amounts;
• Prohibit free samples of cigarettes.

Often, convenience stores and other establishments receive tobacco warning letters in connection with this final requirement – the failure to verify a purchaser’s age, which may also result in Warning letters issued by the FDA for violations of the Tobacco Control Act can be viewed here.

Tobacco Warning Letters: What’s Next?

If your business receives a tobacco warning letter or notice of a tobacco retailer inspection violations, it is extremely important that you take swift action to correct the violations. As stated in all tobacco retailer warning letters, a business only has 15 working days to respond to the FDA. Without a response, the FDA can pursue further legal action against your business with no further notice. 15 days is an extremely short period of time and once a warning letter is received, so swift action must be taken.

We can help you respond to tobacco warning letters and other FDA warning letters by reviewing the legal and regulatory basis for your warning letter, determining the appropriate measures that need to be taken in order to reestablish compliance with federal laws and FDA regulations, if necessary, and drafting a response to your warning letter on your behalf. For more information about hiring a FDA regulatory lawyer to help you respond to FDA warning letters or how you can achieve FDA compliance, please contact us at contact@sglawfl.com.