Importers and Exporters play an important role in protecting public health from the harms of tobacco products.
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- Importing Tobacco Products
- User Fees
- Tobacco health documents (Sec. 904 FD &C Act)
- Ban on cigarettes that contain certain characterizing flavors (Sec. 907 FD&C Act)
- Market authorization (Sec. 910 FD&C Act)
- Modified risk tobacco products (Sec. 911 FD&C Act)
- Smokeless tobacco labels and advertising warnings (Sec. 3 of the Comprehensive Smokeless Tobacco Health Education Act (CSTHEA)
Tobacco products imported or offered for import into the United States must comply with all the applicable requirements under the Federal Food, Drug, and Cosmetic Act (FD&C Act) as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). Under section 801 of the FD&C Act, imported tobacco products, are subject to refusal of admission if, among other reasons, they are, or appear to be, adulterated or misbranded.
In 2014, FDA issued a final rule requiring domestic tobacco product manufacturers and importers to submit information needed to calculate the amount of user fees assessed under the FD&C Act. For more information, please see:
- Information about user fees
- Final Rule: Tobacco Products, User Fees, Requirements for the Submission of Data Needed To Calculate User Fees for Domestic Manufacturers and Importers of Tobacco Products (2014)
- Guidance for Industry: Requirements for the Submission of Data Needed to Calculate User Fees for Domestic Manufacturers and Importers of Tobacco Products issued July 2014
- User Fee Reporting Form (FDA 3852)
Under section 904(a)(4) of the FD&C Act, a manufacturer or importer, or their agents, must submit all documents developed after June 22, 2009, “that relate to health, toxicological, behavioral, or physiologic effects of current or future tobacco products, their constituents (including smoke constituents), ingredients, components and additives.” Health documents developed between June 23, 2009, and December 31, 2009, should have been submitted to FDA by April 30, 2010. FDA plans to collect tobacco health documents developed after December 31, 2009, but before doing so will publish additional guidance specifying the timing of subsequent submissions. Note that all importers are required to preserve tobacco health documents developed after December 31, 2009, for future submissions to FDA. For more information, please see Guidance for Industry: Tobacco Health Document Submission, issued April 2010.
Under section 904(c) of the FD&C Act, at least 90 days prior to introducing a tobacco product into interstate commerce, a manufacturer or importer, or their agents, must submit a listing of all ingredients of the tobacco product. This provision also requires the manufacturer or importer, or their agents, to submit information whenever any additive, or the quantity of any additive, is changed. For more information, please see Guidance for Industry: Listing of Ingredients in Tobacco Products, issued November 2009.
Failure to comply with these requirements is a prohibited act and causes a tobacco product to be misbranded.
Section 907(a)(1)(A) of the FD&C Act bans the use of certain characterizing flavors in cigarettes, stating, in part:
“…a cigarette or any of its component parts (including the tobacco, filter, or paper) shall not contain, as a constituent (including a smoke constituent) or additive, an artificial or natural flavor (other than tobacco or menthol) or an herb or spice, including strawberry, grape, orange, clove, cinnamon, pineapple, vanilla, coconut, licorice, cocoa, chocolate, cherry, or coffee, that is a characterizing flavor of the tobacco product or tobacco smoke.”
Failure to comply is a prohibited act and causes a tobacco product to be adulterated.
For more information, please see Guidance to Industry and FDA Staff: General Questions and Answers on the Ban of Cigarettes that Contain Certain Characterizing Flavors (Edition 2), issued December, 2009.
Sections 910(a)(1)(A) and (B) of the FD&C Act define a “new tobacco product” as “any tobacco product (including those products in test markets) that was not commercially marketed in the United States as of February 15, 2007; or any modification (including a change in design, any component, any part, or any constituent, including a smoke constituent, or in the content, delivery or form of nicotine, or any other additive or ingredient) of a tobacco product where the modified product was commercially marketed in the United States after February 15, 2007.”
Under section 910 of the FD&C Act, a premarket order for a new tobacco product is required prior to its introduction and distribution in the United States, unless
- the manufacturer submits a report under section 905(j) and FDA determines the tobacco product to be substantially equivalent to an appropriate predicate tobacco product; or
- FDA determines that the product is exempt under 905(j)(3) from the requirements demonstrating substantial equivalence.
Section 910(b) provides requirements for applications for review of certain tobacco products. It should be noted that under 910(a)(2)(B) of the FD&C Act, manufacturers of tobacco products first introduced or delivered for introduction into interstate commerce for commercial distribution after February 15, 2007, and prior to March 22, 2011, who submitted a 905(j) report not later than March 22, 2011, may continue to market those tobacco products unless and until FDA issues an order that the tobacco product is not substantially equivalent to the predicate tobacco product.
Failure to obtain appropriate authorization to introduce a new tobacco product causes a tobacco product to be adulterated or misbranded and is a prohibited act.
For more information, please see
- Final Rule: Exemptions From Substantial Equivalence Requirements
- Guidance for Industry and FDA Staff: Section 905(j) Reports: Demonstrating Substantial Equivalence for Tobacco Products, issued January 2011
- Draft Guidance for Industry: Applications for Premarket Review of New Tobacco Products
A “modified risk tobacco product” is “any tobacco product that is sold or distributed for use to reduce harm or the risk of tobacco-related disease associated with commercially marketed tobacco products.” A modified risk tobacco product may not be introduced or delivered for introduction into interstate commerce unless FDA issues an order that it may be commercially marketed. As of July 22, 2010, manufacturers, including importers of finished tobacco products, may not introduce into the domestic commerce of the United States any tobacco product for which the label, labeling, or advertising contains the descriptors “low, ” “mild,” or “light,” or any similar descriptor without an FDA order in effect.
Failure to comply is a prohibited act and causes a tobacco product to be adulterated.
For more information, please see, Guidance for Industry and FDA Staff: Use of “Light,” “Mild,” “Low,” or Similar Descriptors in the Label, Labeling, or Advertising of Tobacco Products, issued June 2010.
Smokeless Tobacco Labels and advertising warnings – Sec. 3 of the Comprehensive Smokeless Tobacco Health Education Act (CSTHEA)
Section 204 of the Tobacco Control Act amended section 3 of the CSTHEA of 1986, 15 U.S.C. 4402, to prohibit:
- any person from manufacturing, packaging, selling, offering to sell, distributing, or importing for sale or distribution within the United States any smokeless tobacco product unless the product packaging bears one of the four textual warning statements that must appear on smokeless tobacco product packages; and
- any smokeless tobacco product manufacturer, packager, importer, distributor, or retailer to advertise or cause to be advertised within the United States unless the advertising bears one of the four textual warning statements that must appear on smokeless tobacco advertising.
Additionally, in accordance with an FDA-approved warning plan, the tobacco product manufacturer, importer, distributor, or retailer must:
- randomly display the required warning statements in as equal a number of times as possible on each brand of smokeless tobacco packaging and randomly distribute in all areas of the United States where the smokeless tobacco product is marketed; and
- rotate quarterly in alternating sequence the required warning statements on smokeless tobacco product advertising.
Failure to comply is a prohibited act and causes a tobacco product to be misbranded.
The Tobacco Control Act requires FDA to report to Congress on the export of tobacco products that do not conform to U.S. tobacco product standards. Based on the review and analyses of a number of data and information sources, FDA concludes that there are currently no documented instances of the export of tobacco products that do not conform to current U.S. tobacco product standards.
For more information, see the Report to Congress on United States Tobacco Product Exports That Do Not Conform to Tobacco Product Standards.