Tobacco Products

Tobacco Product Marketing Orders

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Tobacco products are a unique addition to FDA’s regulatory authorities because they are:

  • Harmful yet widely used consumer products; and
  • Responsible for severe health problems in both users and non-users, including cancer, lung disease, and heart disease, which often lead to death.    

Different Tobacco ProductsFDA’s traditional “safe and effective” standard for evaluating medical products does not apply to tobacco. Instead, FDA regulates tobacco products based on a public health standard intended to reduce the toll that tobacco use causes. To legally market a new tobacco product in the United States, a manufacturer must receive a written order from FDA permitting the marketing of the new tobacco product under one of three pathways. These three pathways are as follows:

  • Premarket Tobacco Applications
  • Substantial Equivalence
  • Exemption from Substantial Equivalence 

Premarket Tobacco Application

Premarket IconMarketing orders are given to Premarket Tobacco Applications that have demonstrated that the new tobacco product is appropriate for the protection of the public health, which is determined with respect to the risks and benefits to the population as a whole, including users and non-users of tobacco products, and taking into account the following: 

 

  • The increased or decreased likelihood that existing users of tobacco products will stop using such products; and
  • The increased or decreased likelihood that those who do not use tobacco products will start using such products.

Summary of Premarket Tobacco Application Final Actions 

PMTA Final ActionsFebruary 2014Total to Date
Refuse to File (RTF) submissions for PMTAs44

Explanation of Selected PMTA Decisions

Included in the summary below are some of the reasons why the FDA may refuse to file a new tobacco product application (PMTA).


Substantial Equivalence

Substantial equivalence is a second pathway manufacturers can use to market a new tobacco product in certain circumstances.

New tobacco products may not be legally marketed in the United States unless FDA has issued an order permitting their marketing. However, if a new tobacco product meets the following criteria:

  1. It was commercially marketed after February 15, 2007 but before March 22, 2011; and
  2. A Substantial Equivalence Report was submitted by March 22, 2011,

then this new tobacco product may continue to be marketed unless FDA issues an order that the new product is not substantially equivalent to a valid predicate product. 

Marketing orders for substantially equivalent tobacco products can be issued for new products that have the same characteristics as valid predicate tobacco products, or have different characteristics but the new products do not raise different questions of public health.   

Summary of Substantial Equivalence Final Actions

SE Final ActionsPre-June 2013JunJulAug Sep Oct Nov Dec 2013 Total 
SE Orders0200438017
NSE Orders0404050013
Refuse to Accept (RTA) letters for SE000000000
Report Withdrawals1327610133171207
SE Final ActionsJanFebMarAprMayJunJulAug Sep Oct Nov Dec 2014 Total 
SE Orders005024 78 
NSE Orders0400067125 
Refuse to Accept (RTA) letters for SE0000100016 
Report Withdrawals2675262249 19 223217 301 
SE Final ActionsJanFebMarAprMayJune2015 Total 
SE Orders662502360
NSE Orders343011867
Refuse to Accept (RTA) letters for SE4001-5
Report Withdrawals95 450329-172

 

Substantial Equivalence Marketing Orders

 

Explanation of Selected Not Substantially Equivalent Orders

Included in the summary below are some of the reasons why the FDA concluded that products were Not Substantially Equivalent (NSE) to the predicate products identified in the submissions.


Exemption from Substantial Equivalence

A tobacco product that is modified by adding or deleting a tobacco additive, or increasing or decreasing the quantity of an existing tobacco additive, may be considered for exemption from demonstrating substantial equivalence if:

  • The product is a modification of another tobacco product and the modification is minor;
  • The modifications are to a tobacco product that may be legally marketed under the FD&C Act;
  • A Substantial Equivalence Report is not necessary to ensure that permitting the tobacco product to be marketed would be appropriate for the protection of public health;
  • The modified tobacco product is marketed by the same organization as the original product; and 
  • An exemption is otherwise appropriate.

Before legally marketing your product, you must obtain written notification that FDA has granted the product an exemption from demonstrating substantial equivalence. In addition, at least 90 days before commercially marketing the product, you must submit a report notifying FDA of your intention to do so and establishing that your product is covered by a granted exemption. (See 21 CFR 1107.1 and Section 905(j) of the FD&C Act.)

Exemption from Substantial Equivalence Final Actions

SE Exemption Final ActionsJunJul Aug Sep Oct Nov Dec Total
Refusal to Accept (RTA) letters for Exemption Requests2022
SE Exemption Final ActionsJan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total
Refusal to Accept (RTA) letters for Exemption Requests13 14
Exemption from SE Final ActionsJan Feb Mar Apr Total
Exemption from SE Orders0011

Exemption from Substantial Equivalence Marketing Orders

 

Page Last Updated: 06/19/2015
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