SS August 2016

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52 SMOKESHOP August 2016 52 SMOKESHOP August 2016 S ince the U.S. Food and Drug Ad- ministration published the tobacco deeming regulations on May 10, 2016, a number of questions have been asked from all segments of the industry. While most of the deeming regulations deal with tobacco manufacturers, there are new regulations that retailers must comply with and retailers have raised questions about those regulations. The list of questions about the deem- ing regulations will likely continue to grow, but below are some of the ques- tions that retailers have asked. Q: What does the FDA mean by the ban- ning of free samples of cigars, pipe tobacco, and vapor products? A. From current FDA guidance docu- ments and court decisions on the FDA's existing tobacco regulations, the ban on free samples of cigars, pipe tobacco and e-cigarettes means that these products cannot be given by a manufacturer or a retailer to an adult at no cost. That is, if money is exchanged between an adult customer and a retailer, then the tobacco product is not "free" and the transaction is not banned. Q: Are promotions such as buy one, get one free prohibited under the free sample ban? A: No. Promotions where there is an ex- change of money between the adult cus- tomer result in the "free" product not re- ally being free and are therefore allowed. Q: Can coupons for deemed tobacco prod- ucts be accepted by a retailer? A: Yes and no. A coupon can be redeemed for a certain cents or dollar amount off of the deemed tobacco products so long as the coupon requires the adult customer to pay some amount over and above the value of the coupon. For example, a cou- pon for $1.00 off a pack of cigars is allowed provided that the pack of cigarettes has a retail price of greater than $1.00. Q: Are "free" products given to customers through customer loyalty program points prohibited? A: No. Under a U.S. Circuit Court of Ap- peals decision, tobacco loyalty programs are allowed since an adult customer has paid money for products to earn points or rewards to be redeemed later for to- bacco products. Q: Is a traditional pipe used to smoke pipe tobacco an "accessory" and therefore not subject to the deeming regulations or is a pipe a "component or part" and thus subject to FDA regulations? A: The FDA has stated that a tradition- al pipe is a "component or part" of a to- bacco product and therefore subject to FDA regulations. "Component or part" is defined as something to be used with or for the human consumption of a to- bacco product. Q: Is a tobacco retailer that purchases bulk pipe tobacco and then resells the pipe tobacco in smaller quantities considered a "manu- facturer" under the deeming regulations? A: Under the Family Smoking Preven- tion and Tobacco Control Act (the law passed by Congress that granted the FDA the authority to regulate tobacco products), the definition of "tobacco product manufacturer" includes "any person, including any repacker or re- labeler, who manufactures, fabricates, assembles, processes, or labels a tobac- co product." Additionally, the Food, Drug & Cosmetic Act defines "manu- facturing, preparation, compounding, or processing" to include "repackag- ing, or otherwise changing the contain- er, wrapper or labeling of any tobacco product package from the original place of manufacture to the person who makes the final delivery or sale to the ultimate consumer or user." If the FDA insists on a literal read- ing of these laws, purchasing large bags of bulk pipe tobacco from a man- ufacturer, removing and storing the pipe tobacco in a different container such as a glass jar, and then selling small quantities of pipe tobacco and packaging the product in plastic bags for a consumer would more than like- ly be considered "repackaging" by the agency and cause a retailer to be regu- lated as a manufacturer. NATO NEWS > Deeming Regs and Retailers: Questions Answered There's no shortage of questions among retailers regarding the FDA deeming regulations. Here, some of the most common, and pressing, are answered. >BY THOMAS BRIANT

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