i U.S. FOOD & DRUG /--, II 

,4 ADM I N ISTRATION 8 FTC 

May 1, 2018 

VIA UPS and Electronic Mail 

Jayson Vaughn

Elite Vaporworks 

1905 Schuetz Road 

St. Louis, MO 63146 

info@elitevaporworks.com 

WARNING LETTER 

Dear Jayson Vaughn: 

This is to advise you that the Center for Tobacco Products of the U.S. Food and Drug 

Administration (FDA) and the U.S. Federal Trade Commission recently reviewed the website 

http://www.elitevaporworks.com, from which you take orders for Whip’d Strawberry e-liquid 

products. FDA has determined that the e-liquid 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, these products are tobacco products because they are

made or derived from tobacco and intended for human consumption. Certain tobacco products, 

including e-liquids, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 

U.S.C. § 387a(b)). In addition, the FTC has reviewed your marketing for Whip’d Strawberry eliquid under Section 5 of the FTC Act, 15 U.S.C. § 45(a). 

FD&C Act Violations 

1. False or Misleading Violation 

FDA has determined that your Whip’d Strawberry e-liquid is misbranded under section 903(a)(1) 

of the FD&C Act (21 U.S.C. § 387c(a)(1)) and/or section 903(a)(7)(A) of the FD&C Act (21 

U.S.C. § 387c(a)(7)(A)) because its labeling and/or advertising is false or misleading. 

FDA’s investigation of the website http://www.elitevaporworks.com revealed that it sells or 

distributes Whip’d Strawberry e-liquid with labeling and/or advertising that causes it to imitate 

food products, particularly ones that are marketed toward, and/or appealing to, children (see

Exhibit A). Specifically, the labeling and/or advertising of the product looks substantially similar 

to Reddi Wip whipped cream, a food product that is marketed toward, and/or appealing to, 

children (see Exhibit B). For example, the labeling and/or advertising for Whip’d Strawberry eliquid includes an illustration depicting a strawberry dunked in whipped cream, displays a color 

scheme that is substantially similar to the labeling and/or advertising of Reddi Wip whipped 

cream, and includes in the product name the terms “Whip’d,” and “Strawberry”. In addition, the 

labeling and/or advertising of Whip’d Strawberry e-liquid includes a cylindrical bottle and a 

swirled bottle cap that are substantially similar to Reddi Wip’s bottle and cap, and your website 

describes the product as “Ripe strawberry and whipped cream.” Further, Whip’d Strawberry e-
 

 

 

 

 

 

 

 

 

 

 

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liquid has a strong scent like strawberries and whipped cream. This labeling and/or advertising 

causes the product to imitate food products, particularly ones that are marketed toward, and/or 

appealing to, children and is therefore misleading. 

Exhibit A Exhibit B 

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 Whip’d Strawberry e-liquid describes its nicotine 

content as 3mg/mL, with a total volume of 60mL, an accidental ingestion of slightly less than a 

teaspoon would reach the lower end of the fatal dose range for an average two-year-old. 

Meanwhile, an accidental ingestion of approximately 3% 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 Whip’d Strawberry eliquid is misleading because it causes the product to imitate food products, particularly ones that 

are marketed toward, and/or appealing to, children. Therefore, the product is misbranded under 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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section 903(a)(1) and/or 903(a)(7)(A) of the FD&C Act. 

2. Sales to Minors Violation 

Additionally, FDA has determined that your Whip’d Strawberry e-liquid is misbranded under 

section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)) because you sold this product 

to a person younger than 18 years of age. 

FDA’s investigation of the website http://www.elitevaporworks.com revealed that you sold an eliquid product to a minor. Specifically, during our investigation of 

http://www.elitevaporworks.com, a person younger than 18 years of age purchased Whip’d 

Strawberry e-liquid from your website. No retailer may sell covered tobacco products, including 

e-liquid, cigar, pipe tobacco, waterpipe tobacco, and dissolvable tobacco products, as well as 

electronic nicotine delivery system (ENDS) products that contain any tobacco derivative, to a 

person younger than 18 years of age under 21 C.F.R. § 1140.14(b). Under 21 C.F.R. § 1140.3, 

a “covered tobacco product” is defined as any tobacco product deemed to be subject to chapter 

IX of the FD&C Act by 21 C.F.R. § 1100.2, excluding components or parts not made or derived 

from tobacco. Before 21 C.F.R. § 1100.2 became effective, only cigarettes, smokeless tobacco, 

roll-your-own tobacco, and cigarette tobacco were subject to chapter IX of the FD&C Act. 21 

C.F.R. § 1100.2 deems all other tobacco products, except accessories of such tobacco 

products, subject to chapter IX and its implementing regulations. The product cited in this 

violation is a “covered tobacco product.” Under section 903(a)(7)(B) of the FD&C Act (21 

U.S.C. § 387c(a)(7)(B)), tobacco products are misbranded if sold or distributed in violation of 

regulations prescribed under section 906(d) of the FD&C Act, including those within 21 C.F.R.

Part 1140. Because this product is sold or distributed to persons younger than 18 years of age 

in violation of 21 C.F.R. § 1140.14(b), this product is misbranded under section 903(a)(7)(B) of 

the FD&C Act (21 U.S.C. § 387c(a)(7)(B)). 

The FD&C Act 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 the ones 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, no-tobacco-sale orders, 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 Whip’d 

Strawberry e-liquid. 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 
 

 

 

 

 

 

 

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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, Whip’d Strawberry e-liquid is marketed in packaging that resembles Reddi 

Wip whipped topping, a brand easily recognized by children. The Reddi Wip website offers 

suggestions for kid friendly after-school snacks, indicating that children are an intended 

market for Reddi Wip. Whip’d Strawberry e-liquid has a scent very similar to strawberries

and whipped cream and the odor is detectible without opening the packaging. Given the 

significant number of serious child poisonings due to the ingestion of liquid nicotine, 

packaging Whip’d Strawberry e-liquid 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 Whip’d 

Strawberry e-liquid 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 violations, 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, RW1800855, 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, please contact Ele Ibarra-Pratt at (301) 796-9235 or via email at

CTPCompliance@fda.hhs.gov. 
Page S - Elite Vaporworks 

With regard to the FTC-related issues described in this letter, please notify Rosemary Rosso of 

the FTC via electronic mail at rrosso@ftc.gov within 15 days of receipt of this letter of the 

specific actions you have taken to address the FTC's concerns. 

Sincerely, _11 

tl,~r~ 

Ann Simoneau, J.D. 

Director 

Office of Compliance and Enforcement 

Center for Tobacco Products 

-* --v~~~ <f;__aR_e Mary K. En~ () -

Associate l:DJ!:ector 

Division of Advertising Practices 

Federal Trade Commission 

VIA UPS and Electronic Mail 

cc: 

Jayson Vaughn 

2306 Ball Drive 

St. Louis, MO 63146 

jaysonvaughn@gmail.com 

Timothy Vaughn 

Elite Vaporworks, LLC 

26 Stone Mill Lane 

St. Peters, MO 63376 

GoDaddy.com, LLC 

abuse@qodaddy.com 

DigitalOcean, LLC 

abuse@digitalocean .com