Children are at particular risk for ingesting e-liquid products with labeling and/or advertising that causes the product to imitate a food or beverage, particularly a food or beverage that is typically marketed toward, and/or appealing to, children. Moreover, children are at particular risk because exposure to the nicotine in the e-liquid product, even in relatively small amounts, could result in acute toxicity. Child poisonings due to the ingestion of liquid nicotine have recently increased substantially. Severe harms can occur in small children from ingestion of liquid nicotine, including death from cardiac arrest, as well as seizure, coma, and respiratory arrest.
Given that the labeling and/or advertising on Candy King Batch and Candy King Sour Worms e-liquids describe their nicotine content as 6mg/mL, with a total volume of 100mL, an accidental ingestion of slightly less than half a teaspoon would reach the lower end of the fatal dose range for an average two-year-old. Additionally, an accidental ingestion of approximately 2% of a teaspoon would reach the lower end of the non-fatal acute toxicity range for an average two-year-old.
The FD&C Act provides, in part, that a tobacco product shall be deemed to be misbranded (1) if its labeling is false or misleading in any particular (section 903(a)(1)), or (2) if the tobacco product is distributed or offered for sale in any State and its advertising is false or misleading in any particular (section 903(a)(7)(A)). The labeling and/or advertising for Candy King Batch and Candy King Sour Worms e-liquids are misleading because they cause the products to imitate candy, particularly ones that are marketed toward, and/or appealing to, children. Therefore, the products are misbranded under section 903(a)(1) and/or 903(a)(7)(A) of the FD&C Act.
The FD&C Act violation discussed in this letter does not necessarily constitute an exhaustive list. You should immediately correct the violation that is referenced above, as well as violations that are the same as or similar to the one 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), in any other media in which you advertise, and in any retail establishments 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, criminal prosecution, seizure, and/or injunction. Please note that any adulterated and misbranded tobacco products offered for import into the United States are subject to detention and refusal of admission.
Unfair or Deceptive Marketing
In addition, the Federal Trade Commission has reviewed the online marketing of Candy King Batch and Candy King Sour Worms e-liquids. Section 5 of the FTC Act prohibits unfair or deceptive acts or practices in or affecting commerce. This prohibition includes practices that present unwarranted health or safety risks. Commission Policy Statement on Unfairness, 104 F.T.C. 1070, 1071 (1984) (appended to Int’l Harvester Co., 104 F.T.C. 949 (1984)), available at https://www.ftc.gov/public-statements/1980/12/ftc-policy-statement-unfairness. Preventing practices that present unwarranted health and safety risks, particularly to children, is one of the Commission’s highest priorities. FTC Strategic Plan for 2018-2022, at 6; Philip Morris, Inc., 82 F.T.C. 16 (1973).
As noted above, Candy King Batch e-liquid packaging resembles that for Sour Patch Kids, a candy brand that is very popular with young children. Candy King Sour Worms e-liquid packaging resembles that for Trolli Sour Bite Crawlers, which also is very popular with young children. Both Candy King Batch and Sour Worms e-liquids have a scent very similar to candy products and the odors are detectible without opening the packaging. Given the significant number of serious child poisonings due to the ingestion of liquid nicotine, packaging Candy King Batch and Sour Worms e-liquids in a manner that is likely to be particularly appealing to young children could present an unwarranted risk to health and safety.
The FTC strongly urges you to review your marketing, including packaging, for Candy King Batch and Candy King Sour Worms e-liquids and similarly marketed products and to take swift and appropriate steps to protect consumers, especially young children.
Conclusion and Requested Actions
With regard to the FD&C Act violation described in this letter, 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. If you do not believe that your products are in violation of the FD&C Act, include your reasoning and any supporting information for our consideration. You can find the FD&C Act through links on FDA’s homepage at http://www.fda.gov
Please note your reference number, RW1800843, 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
With regard to the FTC-related issues described in this letter, please notify Rosemary Rosso of the FTC via electronic mail at email@example.com
within 15 days of receipt of this letter of the specific actions you have taken to address the FTC’s concerns.
Ann Simoneau, J.D.
Office of Compliance and Enforcement
Center for Tobacco Products
Mary K. Engle
Division of Advertising Practices
Federal Trade Commission
VIA Electronic Mail
Drip More LLC