[Federal Register Volume 74, Number 4 (Wednesday, January 7, 2009)]
[Notices]
[Pages 712-719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention


Notice Regarding Revisions to the Laboratory Protocol To Measure 
the Quantity of Nicotine Contained in Smokeless Tobacco Products 
Manufactured, Imported, or Packaged in the United States

AGENCY: Centers for Disease Control and Prevention (CDC), Department of 
Health and Human Services.

ACTION: Notice and Summary of Public Comments.

-----------------------------------------------------------------------

SUMMARY: This notice amends the uniform protocol for the analysis of 
nicotine, total moisture, and pH in smokeless tobacco products 
(``Protocol''). The Protocol, originally published in the Federal 
Register in 1999 (64 FR 14086) and revised in the Federal Register on 
March 14, 2008 (73 FR 13903), implements the requirement of the 
Comprehensive Smokeless Tobacco Health Education Act (CSTHEA) of 1986 
(15 U.S.C. 4401 et seq., Pub. L. 99-252) that each person 
manufacturing, packaging, or importing smokeless tobacco products shall 
annually provide the Secretary of Health and Human Services (HHS) with 
a specification of the quantity of nicotine contained in each smokeless 
tobacco product. CDC re-published the notice in the Federal Register on 
June 23, 2008 (73 FR 35395) concerning the revision of the Protocol (1) 
To make a technical change to correct the date when the first report of 
information under the revised Protocol is due and (2) to solicit public 
comments concerning a change in the Protocol that increased the volume 
of water in the pH determination from 10 mL to 20 mL, and (3) to 
solicit public comments concerning the addition of the following 
commercial smokeless tobacco product categories: dry snuff portion 
packs, snus, snus portion packs, and pellet or compressed. This Notice 
also includes a summary of public comments and CDC's response to them.
    The Protocol as published in the Federal Register on March 14, 2008 
(73 FR 13903), remains in effect with the technical correction to the 
date as described in the Federal Register notice published on June 23, 
2008 (73 FR 35395).

DATES: First report of information due June 30, 2009, with subsequent 
submissions due by March 31 of each year.

FOR FURTHER INFORMATION, CONTACT: Matthew McKenna, M.D., Director, 
Office on Smoking and Health, Centers for Disease Control and 
Prevention, Telephone: (770) 488-5701.

SUPPLEMENTARY INFORMATION: Since the implementation of the Protocol in 
1999, several smokeless tobacco product categories have entered the 
U.S. smokeless tobacco market including snus, low moisture snuff sold 
in portion pouches, and smokeless tobacco sold in a compressed, pellet 
form. Some of the new smokeless tobacco product categories differ 
physically from previous smokeless tobacco categories, prompting a 
revision to the Protocol to reflect the current state of the 
marketplace.
    Through its review of the Protocol, CDC also determined that an 
increase in volume of deionized, distilled water would facilitate 
measurements of pH values. After evaluating information that was 
brought to the attention of CDC regarding low moisture smokeless 
tobacco products packaged in portion pouches, CDC conducted an 
independent comparison of pH measurements in a wide variety of low and 
high moisture smokeless tobacco products. The results of the comparison 
indicated an acceptable (less than 2%) level of change in pH values 
when measurements were taken with 20 mL deionized, distilled water 
compared to the volume of deionized, distilled water specified in the 
previous Protocol. Increasing the volume of water in the mixture 
ensured that the matrix was sufficiently fluid to facilitate ease of 
measure. Thus, it is anticipated that the change in the volume of 
liquid for pH determination will facilitate the ease of measure of 
smokeless tobacco pH for all currently marketed smokeless tobacco 
categories (i.e., plug, twist, moist snuff, dry snuff, snus, loose 
leaf, chew, moist snuff in portion pouches, smokeless tobacco 
compressed into a pellet, and dry snuff in portion pouches).
    Summary of Public Comments and CDC's Response: On June 23, 2008, a 
notice (73 FR 35395) was published reflecting the above discussed 
revisions to the Protocol and to solicit public comment on these 
specific changes. Six comments were received by the CDC, a majority of 
which suggested alternative approaches. A summary of the

[[Page 713]]

comments received and CDC's response follows.
    One commenter expressed a concern for the Federal funding and 
overall direction of the ``smokeless tobacco program.''
    The issues raised in this comment were beyond the scope of the 
Protocol and solicitation of public comment.
    One commenter, on behalf of several smokeless tobacco 
manufacturers, agreed with the proposed revision of Section IV(B) (see 
below for Protocol) of the Protocol to increase the volume of 
deionized, distilled water to be used in pH measurements from 10mL to 
20mL.
    One commenter, on behalf of several smokeless tobacco 
manufacturers, suggested that ``some flexibility be incorporated into 
Section IV(B) of the Protocol by providing that, as long as a minimum 
of 20 mL of liquid and 2 grams of sample are utilized, then larger 
amounts of liquid and sample may be utilized provided they are in a 10 
to 1 ratio.''
    CDC appreciated the suggestion that there be flexibility in 
adjusting the quantity of liquid and sample so long as the ratio of 
liquid to sample is 10 to 1. In evaluating this suggestion, CDC 
determined that adopting such a change would deviate from principles of 
good scientific practice as it does not promote protocol consistency, 
contrary to the aims of a uniform analytical protocol. According to the 
Cooperative Centre for Scientific Research Relative to Tobacco 
(CORESTA), a central organization responsible for promoting tobacco-
related cooperative research, ``[t]he development of standard methods 
is critically important in ensuring consistency and comparability of 
data reported by the association members and as part of regulatory 
reporting of data.'' [Further details on CORESTA's viewpoint and its 
objectives are available online at http://www.coresta.org/Home_Page/PresentationCORESTA(Oct08).pdf.] As the fundamental purpose of the 
Protocol is to implement a multi-site testing protocol, CDC concluded 
that the development of a uniform analytical protocol is paramount to 
ensuring sound scientific efforts.
    One commenter, on behalf of several smokeless tobacco 
manufacturers, raised the following point regarding the categorization 
of smokeless tobacco products in Section I(F) of the Protocol:

    ``* * * many of these separate product `categories' are 
essentially identical smokeless tobacco products for the purposes of 
sample preparation (e.g., Moist snuff and snus; Moist snuff portion 
packs and snus portion packs) * * * since a number of smokeless 
tobacco manufacturers have stated that they are developing new or 
`innovative' smokeless tobacco products, an approach that creates a 
new `category' and sample preparation instruction every time a 
smokeless tobacco product is introduced with a different name or 
description will result in a proliferation of smokeless tobacco 
product `categories' and a need to constantly revise the Protocol to 
add new sample preparation instructions. Such revisions would 
trigger a notice and comment process under the Administrative 
Procedure Act.''

    CDC made the determination to include the four newly listed 
categories after having reviewed the number and types of smokeless 
tobacco products that had entered the market since 1999. In this 
review, CDC concluded that several new products would benefit from a 
separate categorization to not only better aid manufacturers in 
distinguishing their products in this protocol, but also reflect the 
variety of products being sold to and recognized by consumers. This 
review also determined that in the years since the implementation of 
the Protocol in 1999, the quantities of new products introduced to 
market requiring separate categorization had been fairly limited; thus, 
CDC did not believe that constant revisions to the Protocol would be 
necessary. However, CDC will continue to monitor the introduction of 
new smokeless tobacco products and provide assistance to reporting 
entities on the application of the Protocol as needed.
    One commenter, on behalf of several smokeless tobacco 
manufacturers, suggested an alternative approach that would 
``eliminate, or at the least minimize, the need for new `categories' 
and sample preparation instructions.''
    This alternative proposal suggested that:

    ``The alternative approach would be to define the smokeless 
tobacco product categories based on physical characteristics 
relevant to sample preparation (essentially tobacco particle size 
and whether tobacco particles are in a pouch), rather than on a 
manufacturer's package label statement or description * * * ''

    Three product categories were thus proposed.
    If any products did not fall into the three categories, the 
proposal suggested that:

    ``* * * in the event that a smokeless tobacco manufacturer or 
importer believes that a newly marketed smokeless tobacco product 
does not fit within any of the above categories, then samples should 
be prepared in a manner compatible with the above sample preparation 
instructions and the manufacturer or importer should describe the 
sample preparation procedures used when making its submissions to 
CDC.''

    After an evaluation of this alternative approach, CDC concluded 
that the current method of categorization is more appropriate for 
several reasons. First, the current method has been in place since 
1999, with no noted difficulties associated with this product 
categorization. Second, CDC noted that other Federal agencies, such as 
the Federal Trade Commission (FTC) and United States Department of 
Agriculture (USDA), receive and review information on smokeless 
tobacco, not on the basis of physical size characteristics, but on 
these commonly accepted types of categories. Examples can be found in 
the FTC's ``Federal Trade Commission Smokeless Tobacco Report for the 
Years 2002-2005,'' available online at http://www.ftc.gov/reports/tobacco/02-05smokeless0623105.pdf, or in the USDA Economic Research 
Service's ``Tobacco Situation and Outlook Yearbook'', available online 
at http://usda.mannlib.cornell.edu/usda/ers/TBS-yearbook//2000s/2007/TBS-yearbook-01-12-2007.pdf/.
    Furthermore, CDC viewed the existing categorization of products by 
traditional ``consumer-oriented'' descriptions as useful in easily 
identifying issues that concern the general consumer and the overall 
public's health. In contrast, adopting a method of categorization based 
solely on physical product characteristics would not be beneficial 
towards that goal.
    Finally, during its review of this alternate approach, CDC noted 
that there are only three existing methods to prepare smokeless tobacco 
products for analysis in this protocol, despite the varied physical 
characteristics of currently marketed smokeless tobacco products.
    One commenter, on behalf of several smokeless tobacco 
manufacturers, suggested that ``the reporting provision of the FRN be 
amended to provide the following: (i) The revised Protocol shall take 
effect January 1, 2009, and (ii) the first report of information 
pursuant to the revised Protocol is due March 31, 2010, with subsequent 
submissions due by March 31 of each year. This amendment would afford 
smokeless tobacco manufacturers a reasonable amount of time to prepare 
for the implementation of the revised Protocol, and would continue the 
current practice of manufacturers submitting a full year of data based 
on a consistent methodology.''
    For the purposes of this comment, CDC took into consideration a 
Federal Register Notice published in March 2008 (73 FR 13903), which 
served as public notice about the changes in the Protocol. CDC regarded 
this duration of notice as sufficient for the first report of 
information to be due June 30, 2009,

[[Page 714]]

with subsequent submissions due by March 31 of each year, as laid out 
in the June 23, 2008 Federal Register (73 FR 35395).

Collection of Information

    This proposed amendment does not call for any new collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520).

    Dated: December 29, 2008.
James D. Seligman,
Chief Information Officer, Centers for Disease Control and Prevention.

Revised Protocol for Analysis of Nicotine, Total Moisture, and pH in 
Smokeless Tobacco Products

I. Requirements \1\ \2\

A. Reagents \3\

    1. Sodium hydroxide (NaOH), 2N
    2. Methyl t-butyl ether (MTBE)
    3. (-)-Nicotine (Fluka 72290) >99% purity \4\ \5\
    4. Quinoline (Aldrich)
    5. Standard pH buffers; 4.01, 7.00, and 10.00
    6. Deionized distilled water

B. Glassware and Supplies

1. Volumetric flasks, class A
2. Culture tubes, 25 mm x 200 mm, with Teflon-lined screw caps
3. Pasteur pipettes
4. Repipettors (10 mL and 50 mL)
5. Linear shaker (configured to hold tubes in horizontal position) \6\ 
\7\
6. Weighing dishes, aluminum
7. Teflon-coated magnetic stirring bars
8. Polypropylene containers, 50 mL

C. Instrumentation

1. Robot Coupe Model RSI 2V Scientific Batch Processor
2. Capillary gas chromatograph, Hewlett Packard, Model 6890, with 
split/splitless injector capability, flame ionization detector, and a 
capillary column (Hewlett Packard HP-5, Crosslinked 5% PH ME Siloxane, 
30 m length x 0.32 mm ID, film thickness 0.25 or 0.52 [mu]m)
3. Orion Model EA 940 pH meter equipped with Orion 8103 Ross 
combination pH electrode

D. Additional Equipment

    Forced-air oven, Fisher Isotemp[reg], regulated to 99 <plus-minus> 
1.0[deg]C. Suggested dimensions: 18 x 18 x 20inches.

E. Chromatographic Conditions \8\ \9\

1. Detector temperature: 250[deg]C
2. Injector temperature: 250[deg]C
3. Flow rate at 100[deg]C--1.7 mL/min; with split ratio of 40:1 \10\
4. Injection volume: 2 [mu]l
5. Column conditions: 110-185[deg]C at 10[deg]C min<SUP>-</SUP>\1\; 
185-240[deg]C at 6[deg]C min<SUP>-</SUP>\1\, hold at final temperature 
for 10 min.

F. Sample Preparation \11\

    There are ten different categories of commercial smokeless tobacco 
products:
1. Dry snuff;
2. Moist (wet) snuff;
3. Moist (wet) snuff portion packs;
4. Plug;
5. Twist;
6. Loose leaf;
7. Dry snuff portion packs;
8. Snus;
9. Snus portion packs; and
10. Pellet or Compressed.

    Because of their physical characteristics, some of the ten product 
categories must be ground (whole or in part) before nicotine, total 
moisture, and pH analyses can be conducted. The objective of grinding 
the samples is to obtain a homogeneous sample with particles measuring 
approximately 4 mm. Grinding to achieve this particle size should take 
no more than 3 minutes. To ensure proper grinding and an adequate 
amount of the ground sample for analysis, the minimum sample size of 
all commercial products to be ground should not be less than 100 grams.
    To ensure precision of analyses for nicotine, total moisture, and 
pH, the samples that require grinding should be ground using a Robot 
Coupe Model RSI 2V Scientific Batch Processor or its equivalent. This 
is a variable speed (0 to 3000 RPM) processor. The variable speed motor 
is required to ensure proper grinding of the tobacco tissues (and in 
the case of pH determination, the portion pack). Elevated temperatures 
can result in moisture loss and an underestimated value for moisture 
content. Hence, care must be taken during grinding to avoid elevated 
temperatures. The bowl should be cleaned after each grinding to obtain 
accurate results. Freeze- or cryo-grinding is also an acceptable 
grinding method.
    1. Dry snuff: Dry snuff samples do not need to be ground since the 
product is a powder. The sample must be thoroughly mixed before 
weighing for nicotine, total moisture, and pH analysis.
    2. Moist (wet) snuff: Moist (wet) snuff samples do not need to be 
ground. The sample must be thoroughly mixed before weighing for 
nicotine, total moisture, and pH analysis.
    3. Moist (wet) snuff portion packs: The tobacco contents of the 
moist (wet) snuff portion packs do not need to be ground for nicotine, 
total moisture, or pH analysis. The tobacco packaging material (the 
``pouch'') should be separated from the tobacco and ground to obtain 
particles measuring approximately 4 mm for pH analysis. The tobacco of 
the moist (wet) snuff portion pack and the ground pouch are combined 
and thoroughly mixed before pH analysis.
    4. Plug tobacco: Break or cut apart plugs and add in portions to 
grinder at 2000 RPM. Reduce RPM or stop grinding if sample bowl becomes 
warm. Pulse the Robot Coupe, when needed, to complete grinding. Grind 
samples until approximately 4 mm in size. The total grinding time 
should be no more than 3 minutes.
    5. Twist tobacco: Separate twists, add to grinder and grind at 2000 
RPM. Reduce RPM or stop grinding if sample bowl becomes warm. Continue 
grinding until sample particles are approximately 4 mm in size. The 
total time for grinding should be no more than 3 minutes.
    6. Loose leaf: Grind in the same manner as described in 4 and 5 to 
obtain product with particle size of approximately 4 mm.
    7. Dry snuff portion packs: The tobacco contents of the dry snuff 
portion packs do not need to be ground for nicotine, total moisture, or 
pH analysis. The tobacco packaging material (the ``pouch'') should be 
separated from the tobacco and ground to obtain particles measuring 
approximately 4 mm for pH analysis. The tobacco of the dry snuff 
portion pack and the ground pouch are combined and thoroughly mixed 
before pH analysis.
    8. Snus: Snus samples do not need to be ground since the product is 
a powder. The sample must be thoroughly mixed before weighing for 
nicotine, total moisture, and pH analysis.
    9. Snus portion packs: The tobacco contents of the snus portion 
packs do not need to be ground for nicotine, total moisture, or pH 
analysis. The tobacco packaging material (the ``pouch'') should be 
separated from the tobacco and ground to obtain particles measuring 
approximately 4 mm for pH analysis. The tobacco of the snus portion 
pack and the ground pouch are combined and thoroughly mixed before pH 
analysis.
    10. Pellet or compressed: Break apart compressed tobacco pellets 
and add in portions to grinder at 2000 RPM. Reduce RPM or stop grinding 
if sample bowl becomes warm. Pulse the Robot Coupe, when needed, to 
complete grinding. Grind samples until approximately 4 mm in size. The 
total grinding time should be no more than 3 minutes.

[[Page 715]]

II. Nicotine Analysis \12\

A. Calibration Standards

1. Internal Standard (IS)
    Weigh 10.00 grams of quinoline, transfer to a 250 mL volumetric 
flask and dilute to volume with MTBE. This solution will be used for 
calibration of the instrument for the nicotine calibration curve 
(II.A.2), for the standards addition assay (II.B), and for preparation 
of the extracting solution (II.D).
2. Nicotine Calibration Curve
    a. Weigh 1.0000 gram of nicotine into a clean, dry 100 mL 
volumetric flask and dilute to volume with MTBE. This gives a nicotine 
concentration of 10 mg/mL for the stock solution.
    b. Accurately pipette 0.5 mL of IS from stock solution (II.A.1) to 
five clean, dry 50 mL volumetric flasks. To prepare a nicotine standard 
corresponding to a concentration of 0.8 mg/mL, pipette exactly 4.0 mL 
of the nicotine standard (II.A.2.a) to a 50 mL volumetric flask 
containing the internal standard and dilute to volume with MTBE. To 
obtain nicotine concentrations equivalent to 0.6, 0.4, 0.2, and 0.1 mg/
mL, pipette precisely 3.0, 2.0, 1.0, and 0.5 mL, respectively, of the 
nicotine standard into the four remaining flasks and dilute to volume 
with MTBE.
    c. Transfer aliquots of the five standards to auto sampler vials 
and determine the detector response for each standard using gas 
chromatographic conditions described in I.E.
    d. Calculate least squares line for linear equation from these 
standards by obtaining the ratio of Area<INF>nicotine</INF>/ 
Area<INF>IS</INF>. This ratio will be the Y value and the concentration 
of nicotine will be the X value for determining the linear equation of 
the line (Equation 1):

[GRAPHIC] [TIFF OMITTED] TN07JA09.000

Where:
X = Concentration of nicotine in mg
Y = Area<INF>nicotine</INF>/ Area<INF>IS</INF>
a = intercept on the ordinate (y axis)
b = slope of the curve

    The final result will be reported in the following units:
    Concentration of nicotine = mg of nicotine/gram of tobacco sample.
    e. Determine the recovery of nicotine by pipetting 10 mL of the 0.4 
mg/mL nicotine standard to a screw capped tube containing 1.0 mL of 2 N 
NaOH. Cap the tube. Shake the contents vigorously and allow the phases 
to separate. Transfer an aliquot of the organic phase to an injection 
vial and inject. Calculate the concentration of nicotine using the 
equation of the line in II.A.2.d above. This should be repeated two 
more times to obtain an average of the three values. The recovery of 
nicotine can be obtained by using the following equation:
[GRAPHIC] [TIFF OMITTED] TN07JA09.001

B. Standards Addition Assay

    Prior to analyzing a smokeless tobacco product for nicotine 
content, the testing facility must validate the system to verify that 
matrix bias is not occurring during nicotine extraction. This is done 
by analyzing the nicotine calibration standards in the same vegetable 
matrix as the smokeless tobacco. The first time each smokeless tobacco 
product is tested and whenever a change is made to the product 
formulation (including a change to the tobacco blend or cultivar), the 
Standards Addition Assay will be performed, and documentation of its 
performance and of the nicotine concentrations selected for the 
standard curve (II.B.2) will be submitted to the Centers for Disease 
Control and Prevention.
    1. Using an analytical balance, accurately weigh 1.000 <plus-minus> 
0.020 gram of the homogeneous, prepared tobacco sample into a culture 
tube. Repeat this five times for a total of 6 culture tubes containing 
the smokeless tobacco product. Record the weight of each sample.
    2. Prepare a five-point standard curve for the Standards Addition 
Assay. The standard curve must consist of nicotine concentrations that 
encompass the range of values expected from adding known concentrations 
of the nicotine standard (II.A.2.a) to a measured quantity of the 
smokeless tobacco product (1.000 <plus-minus> 0.020 gram, described in 
II.B.1). The sixth culture tube is not supplemented with nicotine and 
serves as an analytical blank. Allow the samples to equilibrate for 10 
minutes.
    3. Pipette 5 mL of 2 N NaOH into each tube. Cap each tube. Swirl to 
wet sample and allow to stand 15 minutes.\13\
    4. Pipette 50 mL of extraction solution (II.D.1) into each tube. 
Cap each tube and tighten.\14\
    5. Place tubes in rack(s), place racks in linear shaker in 
horizontal position and shake for two hours.
    6. Remove rack(s) from shaker and place in vertical position to 
allow the phases to separate.
    7. Allow the solvent and nicotine supplemented samples and the 
blank to separate (maximum 2 hours).
    8. Transfer aliquots of the five standards and the blank from the 
extraction tubes to sample vials and determine the detector response 
for each using gas chromatographic conditions described in I.E.
    9. Subtract the Area<INF>nicotine</INF>/Area<INF>IS</INF> of the 
blank from the Area<INF>nicotine</INF>/Area<INF>IS</INF> of each of the 
standards.
    10. Calculate least squares line for linear equation from the 
corrected standards as described above (Equation 1) in II.A.2.d. The 
final corrected result will be reported in the following units: 
Concentration of nicotine = mg of nicotine/gram of tobacco sample.
    11. Determine the recovery of nicotine by pipetting 10 mL of the 
0.4 mg/mL nicotine standard to a screw capped tube containing 1.0 mL of 
2 N NaOH and 10 mL of extraction solution (II.D.1). Cap the tube and 
tighten. Shake the contents vigorously and allow the phases to 
separate. Transfer an aliquot of the organic phase to an injection vial 
and inject. Calculate the concentration of nicotine using the equation 
of the line above in II.A.2.d. This should be repeated two more times 
to obtain an average of the three values. The recovery of nicotine can 
be obtained by using Equation 2: Recovery = 
Nicotine<INF>calculated</INF>/Nicotine<INF>actual</INF>.
    12. Compare the results of steps II.A.2 and II.B. If they differ by 
a factor of 10% or more, the recovery of nicotine from the aqueous 
matrix is not equivalent to recovery from the vegetable matrix of the 
smokeless tobacco product. In this instance, the nicotine concentration 
of the smokeless tobacco product must be determined from a nicotine 
calibration curve prepared from nicotine standards in a vegetable-based 
matrix.

C. Quality Control Pools

    At least two quality control pools at the high and low ends of the 
expected nicotine values are recommended to be included in each 
analytical run. The pools should be analyzed in duplicate in every run. 
The quality control pools should be available in sufficient quantity to 
last for all analyses of a product.

D. Sample Extraction Procedure \12\

    1. Extraction solution is prepared by pipetting 10 mL of the IS 
from the stock solution (II.A.1) to a 1000 mL volumetric flask and 
diluting to volume with MTBE.
    2. Using an analytical balance, accurately weigh 1.000 <plus-minus> 
0.020 gram of prepared tobacco sample into culture tube and record 
weight.\15\ Sample each smokeless tobacco brand name according to the 
provided testing frequency schedule.\19\ The number of

[[Page 716]]

products sampled should reflect an acceptable level of precision.\16\ 
The test material is to be representative of the product that is sold 
to the public and therefore should consist of sealed, packaged samples 
of finished product that is ready for commercial distribution. Samples 
are to be analyzed in duplicate.
    3. Pipette 5 mL of 2 N NaOH into the tube. Cap the tube. Swirl to 
wet sample and allow to stand 15 minutes.\13\
    4. Pipette 50 mL of extraction solution into tube, cap tube and 
tighten.\14\
    5. Place tubes in rack(s), place racks in linear shaker in 
horizontal position and shake for two hours.
    6. Remove rack(s) from shaker and place in vertical position to 
allow the phases to separate.
    7. Allow the solvent and sample to separate (maximum 2 hours). 
Transfer an aliquot from the extraction tube to a sample vial and cap.
    8. Analyze the extract using GC conditions as described above (I.E) 
and calculate the concentration of nicotine using the linear 
calibration equation. Correct percent nicotine values for both recovery 
and weight of sample by using Equation 3.\17\
[GRAPHIC] [TIFF OMITTED] TN07JA09.002

    9. Report the final nicotine determination as mg of nicotine per 
gram of the tobacco product (mg nicotine/gram), to an accuracy level of 
two decimal places for each brand name (e.g., Skoal Bandits 
Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, etc.). 
All data should include the mean value with a 95% confidence interval, 
the range of values, the number of samples tested, the number of lots 
per brand name, and the estimated precision of the mean. Information 
will be reported for each manufacturer and variety (including brand 
families and brand variations) and brand name (e.g., Skoal Bandits 
Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, etc.).

III. Total Moisture Determination

    A. This procedure is a modification of AOAC Method 966.02 (1990) 
and is referred to as ``Total Moisture Determination'' because it 
determines water and tobacco constituents that are volatile at 
temperatures of 99 <plus-minus> 1.0[deg]C.
    B. Accurately weigh 5.00 grams of the sample (ground to pass <= 4 
mm screen) \20\ into a weighed moisture dish and place uncovered dish 
in oven.\21\ Sample each smokeless tobacco brand name according to the 
provided testing frequency schedule.\19\ The number of products sampled 
should reflect an acceptable level of precision.\16\ The test material 
is to be representative of the product that is sold to the public and 
therefore should consist of sealed, packaged samples of finished 
product that is ready for commercial distribution. Samples are to be 
analyzed in duplicate.
    C. Do not exceed 1 sample/10 sq in (650 sq cm) shelf space, and use 
only 1 shelf. Dry 3 hr at 99 <plus-minus> 1.0[deg]C. Remove from oven, 
cover, and cool in desiccator to room temperature (about 30 min). 
Reweigh and calculate percent moisture.
    D. Report the final moisture determination as a percentage (%), to 
an accuracy level of one decimal place for each brand name (e.g., Skoal 
Bandits Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, 
etc.). All data should include the mean value with a 95% confidence 
interval, the range of values, the number of samples tested, the number 
of lots per brand name, and the estimated precision of the mean. 
Information will be reported for each manufacturer and variety 
(including brand families and brand variations) and brand name (e.g., 
Skoal Bandits Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut 
Wintergreen, etc.).

IV. pH Measurement \12\ \22\

    A. Test samples as soon as possible after they are received. Sample 
each smokeless tobacco brand name according to the provided testing 
frequency schedule.\19\ The number of products sampled should reflect 
an acceptable level of precision.\16\ The test material is to be 
representative of the product that is sold to the public and therefore 
should consist of sealed, packaged samples of finished product that is 
ready for commercial distribution. Samples are to be analyzed in 
duplicate.
    B. Accurately weigh 2.00 grams of the sample. Place in a 50 mL 
polypropylene container with 20 mL deionized distilled water.
    C. Place Teflon-coated magnetic stirring bar in container and stir 
mixture continuously throughout testing.
    D. Measure pH of sample after a two-point calibration of the pH 
meter to an accuracy of two decimal places using standard pH buffers 
(4.01 and 7.00 or 7.00 and 10.00) that will encompass the expected pH 
value of the smokeless tobacco product.
    E. The first time pH values are determined for a smokeless tobacco 
product, measure the pH of the smokeless tobacco product at 5, 15, and 
30 minutes. If there is no systematic variation in pH values with time, 
all subsequent pH determinations are made at 5 minutes. If there is 
systematic variation in pH values, continue to measure the pH of the 
smokeless tobacco product until the pH value is stable and does not 
vary more than 10% over 15 minutes. Report the final pH value.
    F. Report the final pH determination to an accuracy level of two 
decimal places for each brand name (e.g., Skoal Bandits Wintergreen, 
Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, etc.). All data 
should include the mean value with a 95% confidence interval, the range 
of values, the number of samples tested, the number of lots per brand 
name, and the estimated precision of the mean. Information will be 
reported for each manufacturer and variety (including brand families 
and brand variations) and brand name (e.g., Skoal Bandits Wintergreen, 
Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, etc.).
    G. Estimate the un-ionized (free) nicotine content with the 
Henderson-Hassel Balch equation (Equation 4), based on measured pH and 
nicotine content.

[[Page 717]]

[GRAPHIC] [TIFF OMITTED] TN07JA09.003

    H. Report the final estimated un-ionized (free) nicotine as a 
percentage (%) of the total nicotine content, to an accuracy level of 
two decimal places and as mg of un-ionized (free) nicotine per gram of 
the tobacco product (mg un-ionized (free) nicotine/gram), to an 
accuracy level of two decimal places for each brand name (e.g., Skoal 
Bandits Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, 
etc.). All data should include the mean value with a 95% confidence 
interval, the range of values, the number of samples tested, the number 
of lots per brand name, and the estimated precision of the mean. 
Information will be reported for each manufacturer and variety 
(including brand families and brand variations) and brand name (e.g., 
Skoal Bandits Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut 
Wintergreen, etc.).
    Sample calculation:
    [GRAPHIC] [TIFF OMITTED] TN07JA09.004
    

[[Page 718]]



V. Assay Criteria for Quality Assurance

A. Establishing Limits for Quality Control Parameters

    All quality control parameters must be determined within the 
laboratory in which they are to be used. At least 10 within-laboratory 
runs must be performed to establish temporary confidence intervals for 
the quality control parameters. Permanent limits should be established 
after 20 runs and should be reestablished after each additional 20 
runs.

B. Exclusion of Outliers from the Calibration Curve \18\

    The coefficient of determination between Area<INF>nicotine</INF>/
Area<INF>IS</INF> and nicotine concentration should be equal to 0.99 or 
higher. Any calibration standard having an estimated concentration 
computed from the regression equation (Equation 1) which is different 
from its actual concentration by a factor of 10% can be excluded from 
the calibration curve. Up to two concentrations may be excluded, but 
caution should be used in eliminating values, since bias may be 
increased in the calibration curve. If an outlier value is eliminated, 
its duplicate value must also be discarded to avoid producing a new 
bias. All unknowns must fall within the calibration curve; therefore, 
duplicate values excluded at either end of the calibration curve will 
restrict the useful range of the assay.

C. Quality Control Pools and Run Rejection Rules

    The mean estimated nicotine concentration in a pool should be 
compared with the established limits for that pool based on at least 20 
consecutive runs. An analytical run should be accepted or rejected 
based upon the following set of rules adapted from Westgard et al. 
(1981).
    1. When the mean of one QC pool exceeds the limit of x <plus-minus> 
3 standard deviations (SD), then the run is rejected as out of control. 
Here, x and SD represent the overall mean and standard deviation of all 
estimated nicotine concentrations for a particular pool in the runs 
which were used to establish the control limits.
    2. When the mean nicotine concentrations in two QC pools in the 
same run exceed the same direction, then the run must be rejected. The 
same direction is the condition in which both pools exceed either the x 
+ 2 SD or the x -2 SD limits.
    3. When the mean nicotine concentrations in one or two QC pools 
exceed their x <plus-minus> 2 SD limits in the same direction in two 
consecutive runs, then both runs must be rejected.
    4. When the mean nicotine concentrations in two QC pools are 
different by more than a total of 4 SD, then the run must be rejected. 
This condition may occur, for example, when one QC pool is 2 SD greater 
than the mean, and another is 2 SD less than the mean.

Endnotes

    The comments and notes listed below can be described as Good 
Laboratory Practice guidelines; they are described in detail in this 
protocol to ensure minimal interlaboratory variability in the 
determination of nicotine, total moisture, and pH in smokeless tobacco.
    \1\ This protocol assumes that the testing facility will implement 
and maintain a stringent Quality Assurance/Quality Control program to 
include, but not be limited to, regular interlaboratory comparisons, 
determination of the quality and purity of purchased products, and 
proper storage and handling of all reagents and samples.
    \2\ When a specific product or instrument is listed, it is the 
product or instrument that was used in the development of this method. 
Equivalent products or instruments may also be used. Use of trade names 
is for identification only and does not constitute endorsement by the 
Public Health Service or the U.S. Department of Health and Human 
Services.
    \3\ All chemicals, solvents, and gases are to be of the highest 
purity.
    \4\ Companies must ensure that the purity of the nicotine base is 
certified by the vendor and that the chemical is properly stored. 
However, nicotine base oxidizes with storage, as reflected by the 
liquid turning brown. If oxidation has occurred, the nicotine base 
should be distilled prior to use in making a standard solution.
    \5\ A suggested method for the determination of nicotine purity is 
CORESTA Recommended Method No. 39.
    \6\ Horizontal shaking will allow more intimate contact of this 
three phase extraction. There is a minimal dead volume in the tube due 
to the large sample size and extraction volume. This necessitates 
horizontal shaking.
    \7\ If a linear shaker is not available, a wrist action shaker 
using 250 mL stoppered Erlenmeyer flasks can be substituted. Values for 
nicotine are equivalent to those obtained from the linear shaker.
    \8\ After installing a new column, condition the column by 
injecting a tobacco sample extract on the column, using the described 
column conditions. Injections should be repeated until areas of IS and 
nicotine are reproducible. This will require approximately four 
injections. Recondition column when instrument has been used 
infrequently and after replacing glass liner.
    \9\ Glass liner and septum should be replaced after every 100 
injections.
    \10\ Most older instruments operate at constant pressure. To reduce 
confusion, it is suggested that the carrier gas flow through the column 
be measured at the initial column temperature.
    \11\ The testing facility must ensure that samples are obtained 
through the use of a survey design protocol for sampling ``at one point 
in time'' at the factory or warehouse. The survey design protocol must 
address short-, medium-, and long-term smokeless tobacco product 
variability (e.g., variability over time and from container to 
container of the tobacco product) in a manner equivalent to that 
described for cigarette sampling in Annex C of ISO Protocol 8243. 
Information accompanying results for each sample should include, but 
not be limited to:
    For each product--manufacturer and variety (including brand 
families and brand variations) and brand name (e.g., Skoal Bandits, 
Skoal Long Cut Cherry, Skoal Long Cut Wintergreen, etc.):
    1. Product ``category,'' e.g., loose leaf, plug, twist, dry snuff, 
moist (wet) snuff, etc.
    2. Lot number.
    3. Lot size.
    4. Number of randomly sampled, sealed, packaged (so as to be 
representative of the product that is sold to the public) smokeless 
tobacco products selected (sampling fraction) for nicotine, moisture, 
and pH determination.
    5. Documentation of method used for random sample selection.
    6. `''Age'' of product when received by testing facility and 
storage conditions prior to analysis.
    \12\ Extraction of nicotine and pH determination must be performed 
with reagents and samples at a room temperature of 22-25[deg]C. Room 
temperature should not vary more than 1[deg]C during extraction of 
nicotine or pH determination.
    \13\ Use non-glass 10 mL repipette for transferring NaOH solution.
    \14\ Use 50 mL repipette for transferring MTBE.
    \15\ For dry snuff, use 0.500 <plus-minus> 0.010 gram sample.
    \16\ The testing facility is referred to ISO Procedure 8243 for a 
discussion of sample size and the effect of variability on the 
precision of the mean of the sample (ISO 8243, 1991).
    \17\ When analyzing new smokeless tobacco products, extract product 
without IS to determine if any

[[Page 719]]

components co-elute with the IS or impurities in the IS. This 
interference could artificially lower calculated values for nicotine.
    \18\ The calculated nicotine values for all samples must fall 
within the low and high nicotine values used for the calibration curve. 
If not, prepare a fresh nicotine standard solution and an appropriate 
series of standard nicotine dilutions. Determine the detector response 
for each standard using chromatographic conditions described in I.E.
    \19\ The testing frequency for each smokeless tobacco brand name 
(e.g., Skoal Bandits Wintergreen, Skoal Long Cut Cherry, Skoal Long Cut 
Wintergreen, etc.) is based on the manufacturing duration (refer to 
table below). Each smokeless tobacco brand name will be sampled and 
tested for nicotine, total moisture, and pH no fewer than twice and no 
more than four times during a calendar year.

------------------------------------------------------------------------
                                                                 Test
              Manufacturing duration in weeks                 frequency*
------------------------------------------------------------------------
up to and including 4......................................            2
up to and including 28.....................................            3
up to and including 52.....................................           4
------------------------------------------------------------------------
*Use a statistical program to determine random sampling dates based on
  the total manufacturing duration during a calendar year. Sampling
  dates should fall on actual manufacturing days for the product when
  test material that is representative of the product that is sold to
  the public (consisting of sealed, packaged samples) is available. If a
  statistically determined sampling date falls on a day that does not
  meet this criterion, sample the product on the next date that does
  meet the criteria.

    For smokeless tobacco brand names with episodic production during a 
calendar year, the total number of sampling dates is determined by the 
sum of the individual test frequencies, not to exceed four. For the 
purpose of the Protocol, episodic production is defined as 
manufacturing intervals separated by periods of 30 or more days when 
the smokeless tobacco brand name is not manufactured.

    Example 1: Within a single calendar year a smokeless tobacco 
brand name is manufactured from January 1 to March 31 and from 
September 1 to December 15. The testing frequency for the first 
manufacturing interval is 3 and for the second manufacturing 
interval is 3. The Protocol allows that each smokeless tobacco brand 
name be tested for nicotine, total moisture, and pH no more than 
four times during a calendar year. Therefore, 4 random sampling 
dates, as described in the footnote to the above table, are 
determined for the smokeless tobacco brand name. The values for 
nicotine, moisture, and pH determinations, and unionized (free) 
nicotine calculations and the mean of the 4 data points for that 
smokeless tobacco brand name are reported.
    Example 2: Within a single calendar year a smokeless tobacco 
brand name is manufactured from April 5 to May 3 and from September 
1 to December 15. The testing frequency for the first manufacturing 
interval is 2 and for the second manufacturing interval is 3. The 
values for nicotine, moisture, and pH determinations, and unionized 
(free) nicotine calculations and the mean of the 4 data points for 
that smokeless tobacco brand name are reported.
    Example 3: Within a single calendar year a smokeless tobacco 
brand name is manufactured from January 1 to January 15 and from 
September 1 to September 22. The testing frequency for the first 
manufacturing interval is 2 and for the second manufacturing 
interval is 2. Four random sampling dates are selected to fall 
within the 6 weeks of manufacturing for the smokeless tobacco brand 
name. The values for nicotine, moisture, and pH determinations, and 
unionized (free) nicotine calculations and the mean of the 4 data 
points for that smokeless tobacco brand name are reported.

    \20\ The method is a modification of AOAC Method 966.02 (1990) in 
that the ground tobacco passes through a 4 mm screen rather than a 1 mm 
screen.
    \21\ When drying samples, do not dry different products (e.g., 
moist (wet) snuff, dry snuff, loose leaf) in the oven at the same time 
since this will produce errors in the moisture determinations.
    \22\ The method is a modification of a method published by 
Henningfield et al. (1995).

References

    AOAC (Association of Official Analytical Chemists). Official 
Methods of Analysis. 966.02: Moisture in Tobacco. (1990) Fifth Edition. 
K. Helrich (ed). Association of Official Analytical Chemists, Inc., 
Suite 400, 2200 Wilson Boulevard, Arlington, Virginia 22201 USA.
    CORESTA (Centre de Coop[eacute]ration pour les Recherches 
Scientifiques relatives au Tabac). Recommended Method No. 39: 
Determination of the purity of nicotine and nicotine salts by 
gravimetric analysis--Tungstosilic acid method. November, 1994. 87-90.
    CRC Handbook of Chemistry and Physics. R.C. Weast, D.R. Lide, M.J. 
Astle, and WH. Beyer (eds). 70th ed. Boca Raton, Florida: CRC Press 
(1989-1990) D-162.
    Henningfield, J.E., Radzius A., Cone E.J. (1995). Estimation of 
available nicotine content of six smokeless tobacco products. Tobacco 
Control 4:57-61.
    ISO (International Organization for Standardization). IOS 8243: 
Cigarettes--Sampling. (1991). Second Edition. Prepared by Technical 
Committee ISO/TC 126, Tobacco and tobacco products. International 
Organization for Standardization, Case Postale 56, CH-1211 Genve 20, 
Switzerland.
    Westgard J.O., Barry P., Hunt M., and Groth T. (1981). A multi-rule 
Shewhart chart for quality control in clinical chemistry. Clinical 
Chemistry 27:493.
[FR Doc. E9-19 Filed 1-6-09; 8:45 am]
BILLING CODE 4163-18-P