- Delivery Method:
- Electronic Mail
- African Spirit Tobacco Limited
- Issuing Office:
- Center for Tobacco Products
| || |
Department of Health and Human Services
|Food and Drug Administration|
Center for Tobacco Products
10903 New Hampshire Avenue
Silver Spring, MD 20993
DEC 9, 2015
VIA Electronic Mail
Dear Mr. Havercroft:
The Center for Tobacco Products the U.S. Food and Drug Administration (FDA) recently reviewed the website http://www.africanspirittobacco.com and determined that the cigarette tobacco and/or roll-your-own tobacco 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)), as amended by the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), these products are tobacco products because they are made or derived from tobacco and intended for human consumption. Certain tobacco products, including cigarette tobacco and roll-your-own tobacco, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)).
FDA has determined that the website, http://www.africanspirittobacco.com, offers for sale or distributes cigarette tobacco and/or roll-your-own tobacco products. Section 900(4) of the FD&C Act (21 U.S.C. § 387(4)) defines “cigarette tobacco” as “any product that consists of loose tobacco that is intended for use by consumers in a cigarette.” Section 900(15) of the FD&C Act (21 U.S.C. § 387(15)) defines “roll-your-own tobacco” as “any tobacco product which, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes.”
We note that on the website you present loose tobacco products that are offered for sale or distributed as cigarette tobacco and/or roll-your-own tobacco, including Air cured Burley, Virginia Flue Cured, and Low Nicotine Tobacco. The overall presentation of these products on the website strongly suggests that they are intended for use in a cigarette, likely to be offered to consumers for making cigarettes, and/or likely to be purchased by consumers for making cigarettes. Specifically, Air cured Burley – Light is described as being a “tobacco leaf . . . commonly used as the counterpart of Virginia Flue Cured tobacco in most cigarette blends.” Virginia Flue Cured –is described as being “primarily used for cigarette blends” and being a “tobacco leaf . . . commonly used for the flavor in cigarette tobacco blends.” The website also offers for sale or distribution “Cigarette tubes,” with the description “We offer RYO / MYO cigarette tubes . . . using the right tube can put an amazing spin on your smoking experience . . . the combination of blends and tubes are endless!” Additionally, the “FAQ” page asks “How many cigarettes can be rolled out of a kilo of tobacco (approx.)?” and states “It depends on the rolling technique. Different kinds of leaves are often used for different styles of cigarettes . . . With these variables in mind, you can roll around 1000cigarettes per kilo of tobacco.” The FAQ page also asks “How do I roll my own cigarette using your product?” and states “Because we carry whole tobacco leaves, you would need to prep the leaves before rolling your own cigarettes. Therefore, the products meet the definition of “cigarette tobacco” and/or “roll-your-own tobacco” in the FD&C Act.
FDA has determined that several cigarette tobacco and/or roll-your-own tobacco products areadulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)) because they are modified risk tobacco products sold or distributed without an FDA order in effect that permits such sale or distribution.
Modified Risk Tobacco Product Violations
Our review of the website, http://www.africanspirittobacco.com, revealed that you sell or distribute the following cigarette tobacco and/or roll-your-own tobacco products,which arelisted or described as being light, mild, or using similar descriptors: Low Nicotine Tobacco (described as “lighter” and “mild”). In addition, you sell or distribute a cigarette tobacco and/or roll-your-own tobacco products that are described as having a reduced level of/exposure to a substance. Specifically, the website includes the following claim: Low Nicotine Tobacco, described as “low in nicotine.”
A tobacco product with a label, labeling, or advertising that uses the descriptor “light,” “mild,” “low,” or a similar descriptor, is a “modified risk tobacco product” under section 911(b)(2)(A)(ii) of the FD&C Act (21 U.S.C. § 387k(b)(2)(A)(ii)). A tobacco product is also considered a “modified risk tobacco product” under section 911(b)(2)(A)(i) of the FD&C Act (21 U.S.C. § 387k(b)(2)(A)(i)) if its label, labeling, or advertising explicitly or implicitly represents that: (1) the product presents a lower risk of tobacco-related disease or is less harmful than one or more other commercially marketed tobacco products; (2) the product or its smoke contains a reduced level of a substance or presents a reduced exposure to a substance; or (3) the product or its smoke does not contain or is free of a substance. Under section 911(a) of the FD&C Act (21 U.S.C. § 387k(a)), no person may introduce or deliver for introduction into interstate commerce any modified risk tobacco product without an FDA order in effect under section 911(g) of the FD&C Act (21 U.S.C. § 387k(g)). A product that is in violation of section 911(a) of the FD&C Act (21 U.S.C. § 387k(a)) is adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)).
The above listed products are modified risk tobacco products because website uses the descriptors light, mild, or similar descriptors to describe these products or describes them as having a reduced level of/exposure to a substance. Because these products are sold or distributed to customers in the United States without an appropriate FDA order in effect under section 911(g) of the FD&C Act (21 U.S.C. § 387k(g)), these products are adulterated under section 902(8) of the FD&C Act (21 U.S.C. § 387b(8)).
Conclusion and Requested Actions
The violations discussed in this letter do not necessarily constitute an exhaustive list. You should immediately correct the 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.
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 ensure full compliance with the FD&C Act may result in FDA initiating further action without notice, including, but not limited to, civil money penalties, no-tobacco-sale orders, criminal prosecution, seizure, and/or injunction. Please note that adulterated and misbranded tobacco products offered for import into the United States are subject to detention and refusal of admission.
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. You can find the FD&C Act through links on FDA’s homepage at http://www.fda.gov
Please note your reference number, RW1500427, 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 CTPCompliance@fda.hhs.gov.
Ann Simoneau, J.D.
Office of Compliance and Enforcement
Center for Tobacco Products
VIA Electronic Mail
African Spirit Tobacco Limited