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U.S. Department of Health and Human Services

Inspections, Compliance, Enforcement, and Criminal Investigations

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Red Eye Grill 8/9/12

  

Department of Health and Human Services logoDepartment of Health and Human Services

Public Health Service
Food and Drug Administration
 Center for Tobacco Products
9200 Corporate Boulevard
Rockville, MD 20850-3229

 

WARNING LETTER
AUG 9, 2012 
VIA UPS
 
Red Eye Grill
Attn: Site Manager
852 South Peters Street
New Orleans, LA 70130
 
Re: FDA Warning Letter Regarding Tobacco Retailer Inspection Violations
       Reference Number: 12LA001987
 
Dear Sir or Madam:
 
This Warning Letter is notification from the United States Food and Drug Administration (FDA) advising you that Red Eye Grill was observed to be in violation of federal tobacco laws and regulations. Failure to correct these violations may lead to federal enforcement actions, including monetary penalties. Your response is requested in 15 working days.
 
On May 8, 2012, an inspector representing the FDA completed an inspection of the establishment, located at 852 South Peters Street, New Orleans, LA 70130. During this inspection the establishment was in violation because a minor purchased cigarettes from a vending machine in the establishment, you or your employees failed to check identification to verify purchaser’s age, and the establishment has a vending machine that sells cigarettes in a facility not restricted to adults at all times.
 
This inspection revealed that the establishment sells, distributes, advertises, and/or promotes cigarettes, cigarette tobacco, and/or smokeless tobacco, which requires that the establishment and its owners comply with federal laws and regulations governing such practices. The violations observed during the May 8, 2012, inspection include the following:
 
  1. A minor was able to buy Kool Filter Kings Box cigarettes on May 8, 2012, at approximately 5:49 PM CT in the establishment.
 
A retailer must NOT sell cigarettes, cigarette tobacco, and/or smokeless tobacco to a person younger than 18 years of age. Doing so violates 21 C.F.R. § 1140.14(a).
    
  1. No one in the establishment checked the minor’s identification before the sale of Kool Filter Kings Box cigarettes on May 8, 2012, at approximately 5:49 PM CT.
A retailer MUST check a photographic identification that includes a date of birth for any person under the age of 27 who attempts to purchase cigarettes, cigarette tobacco, and/or smokeless tobacco. Failure to do so violates 21 C.F.R. § 1140.14(b)(1).
 
  1. The establishment has a vending machine that provides a consumer direct access to cigarettes without restricting the facility to adults at all times. Specifically, a minor entered the establishment and purchased cigarettes from the vending machine.
 
A retailer MUST sell cigarettes, cigarette tobacco, and/or smokeless tobacco only in a direct, face-to-face exchange between the retailer and the consumer and cannot use a vending machine unless a retailer ensures that minors are neither present nor permitted to enter at any time. Failure to do so violates 21 C.F.R. § 1140.14(c).
 
The establishment fails to ensure that minors are neither present nor permitted to enter at any time as the establishment is open to the general public during business hours. During the inspection, a minor was able to enter the establishment and purchase cigarettes. Therefore, the establishment is not restricted. It is your responsibility to ensure that no person younger than 18 years of age is present or permitted to enter the establishment at any time, or to ensure that all cigarettes, cigarette tobacco, and/or smokeless tobacco products are only sold in a direct, face-to-face exchange.
 
The listed violations cause your cigarettes to be “misbranded” under 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)). 
 
You should immediately correct the violations listed above. Failure to correct the violations may result in FDA taking regulatory action without further notice. These actions may include, but are not limited to, civil money penalty, no-tobacco-sale order, seizure, and/or injunction.
 
The violations indicated in this letter may not be a complete list of violations at the establishment. The establishment must comply with all the applicable laws and regulations. For more information on these requirements, helpful resources for retailers, a database of inspections, and free Break the Chain of Tobacco Addiction materials, visit our website at www.fda.gov/TobaccoProducts
 
You have 15 working days from the date you receive this letter to respond. In your response, explain your plan for correcting the listed violations and preventing future violations. Include a telephone number and address. Note your reference number of 12LA001987 in your response and mail it to:
 
SP-WL Response
FDA Center for Tobacco Products
9200 Corporate Boulevard
c/o Document Control Center
Rockville, Maryland 20850
 
If you have any questions, contact Sashka Mannion at (301) 796-3010 or via email at Sashka.Mannion@fda.hhs.gov. Have your reference number ready when you call and include it with any email communications.
 
Sincerely,
/S/
Ann Simoneau, J.D.
Director
Office of Compliance and Enforcement
Center for Tobacco Products
 
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