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WARNING LETTER

 

Dear Yash Pandit:

The Center for Tobacco Products of the U.S. Food and Drug Administration (FDA) recently reviewed the website https://ejuicepack.com and determined that the e-liquid products listed there are offered for sale or distribution to customers in the United States.

Under section 201(rr) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. § 321(rr)), these products are tobacco products because they are made or derived from tobacco and intended for human consumption.  Certain tobacco products, including e-liquids, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)) and 21 C.F.R. § 1100.1.  Therefore, e-liquids are required to be in compliance with the requirements in the FD&C Act.

Please be aware that, effective August 8, 2016, FDA deemed additional products meeting the definition of a tobacco product, except accessories to these newly deemed products, to be subject to regulation under the Act.  These products include, but are not limited to, electronic nicotine delivery systems (ENDS) (including e-cigarettes), e-liquids, cigars, and pipe tobacco.  See Final Rule, Deeming Tobacco Products To Be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products, 81 Fed. Reg. 28,974 (May 10, 2016), available at https://federalregister.gov/a/2016-10685.

The FD&C Act requires “new tobacco products” to have premarket authorization.  A “new tobacco product” is any tobacco product that was not commercially marketed in the United States as of February 15, 2007, or any modified tobacco product that was commercially marketed after February 15, 2007 (section 910(a) of the FD&C Act; 21 U.S.C. § 387j(a)).  Generally, a marketing authorization order under section 910(c)(1)(A)(i) of the FD&C Act (21 U.S.C. § 387j(c)(1)(A)(i)) is required for a new tobacco product unless (1) the manufacturer of the product submitted a report under section 905(j) of the FD&C Act (21 U.S.C. § 387e(j)) and FDA issues an order finding the product substantially equivalent to a predicate tobacco product (section 910(a)(2)(A) of the FD&C Act) or (2) the manufacturer submitted a report under section 905(j)(1)(A)(ii) of the FD&C Act (21 U.S.C. § 387e(j)(1)(A)(ii)) and all modifications are covered by exemptions from the requirements of substantial equivalence granted by FDA under section 905(j)(3) of the FD&C Act (21 U.S.C. § 387e(j)(3).

New Tobacco Products Without Required Marketing Authorization are Adulterated and Misbranded

Our review of the website https://ejuicepack.com revealed that you offer for sale or distribution to customers in the United States the following e-liquids products without a marketing authorization order:

• Pink Sticks
• Candy King Batch
• Candy King Sour Worms

The e-liquid products listed above are new tobacco products because they were not commercially marketed in the United States as of February 15, 2007.  These products do not have FDA marketing authorization orders in effect under section 910(c)(1)(A)(i) of the FD&C Act and are not otherwise exempt from the marketing authorization requirement.  Therefore, these products are adulterated under section 902(6)(A) of the FD&C Act.  In addition, they are misbranded under section 903(a)(6) of the FD&C Act because a notice or other information respecting these products was not provided as required by section 905(j) of the FD&C Act.  Additionally, to the extent that a report was required under section 905(j) of the FD&C Act, the failure to provide such report is a prohibited act under section 301(p) of the FD&C Act (21 U.S.C. § 331(p)).

 

Additional Considerations

 

FDA finds your products particularly concerning because Pink Sticks, Candy King Batch, and Candy King Sour Worms e-liquid products (see Exhibits A) appear to imitate food products that are typically marketed toward and/or appealing to children.  Specifically, the packaging for these e-liquid products looks very similar to Pocky Strawberry biscuit sticks, Sour Patch Kids candy, and Trolli Sour Brite Crawlers candy (see Exhibits B), which are commonly marketed toward and/or appeal to children.  FDA is concerned about the rising youth appeal and dramatic rise in youth use of ENDS products, including e-liquids. Any efforts to entice minors to use tobacco products are of concern to FDA.  Sales of such products to minors are prohibited, and FDA is concerned that your actions likely encourage unlawful sales, maintain or increase youth use, and contribute to the public health and safety concerns associated with ENDS products, including e-liquids.

 

Conclusion and Requested Actions

 

It is your responsibility to ensure that your tobacco products and all related labeling and/or advertising on this website, on any other websites (including e-commerce, social networking, or search engine websites), and in any other media in which you advertise comply with each applicable provision of the FD&C Act and FDA’s implementing regulations.  Failure to address any violations of the type described above may result in FDA’s initiating action, including, but not limited to, civil money penalties, seizure, and/or injunction.  However, this Warning Letter does not constitute “written notice” for purposes of section 303(f)(9)(B)(i)(II) of the FD&C Act.  Please note that adulterated and misbranded tobacco products offered for import into the United States are subject to detention and refusal of admission.

The violations discussed in this letter do not necessarily constitute an exhaustive list.  You should promptly correct any violations that are referenced above, as well as violations that are the same as or similar to those stated above, and take any necessary actions to bring your tobacco products into compliance with the FD&C Act. 

Please submit a written response to this letter within 15 working days from the date of receipt describing your corrective actions, including the dates on which you discontinued the violative labeling, advertising, sale, and/or distribution of these tobacco products and your plan for maintaining compliance with the FD&C Act.  If you do not believe that your products are in violation of the FD&C Act, include your reasoning and any supporting information for our consideration.  You can find the FD&C Act through links on FDA’s homepage at http://www.fda.gov.

Please note your reference number, RW2001267, in your response and direct your response to the following address:

DPAL-WL Response, Office of Compliance and Enforcement
FDA Center for Tobacco Products
c/o Document Control Center
Building 71, Room G335
10903 New Hampshire Avenue
Silver Spring, MD 20993-0002

If you have any questions about the content of this letter, please contact Ele Ibarra-Pratt at (301) 796-9235 or via email at [email protected].    

Sincerely,
/S/

Ann Simoneau, J.D.
Director
Office of Compliance and Enforcement
Center for Tobacco Products

 

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