,,;~ mJ!I U.S. FOOD & DRUG 

l ~\.._ - ADMINIST RATION 

May 1, 2018 

VIA UPS and Electronic Mail 

Robert Crossley 

Cosmic Fog Vapors LLC 

d/b/a Next Day Vapor Products 

3115 Airway Ave 

Costa Mesa, CA 92626 

cosmicfogvapors@gmail.com 

WARNING LETTER 

Dear Robert Crossley: 

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.nextdayvaporproducts.com, from which you take orders for Whip'd Strawberry eliquid products. FDA has determined that the e-liquid products listed there are manufactured 

and 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 e-liquid under Section·5 of the FTC Act, 15 U.S.C. § 45(a). 

FD&C Act Misbranding 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.nextdayvaporproducts.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 "Strawberries and Custard topped off with Whipped Cream." Further, 

Whip'd Strawberry e-liquid has a strong scent like strawberries and whipped cream. This 
Page 2 - Cosmic Fog Vapors LLC d/b/a Next Day Vapor Products 

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 

section 903(a)(1) and/or 903(a)(7)(A) of the FD&C Act. 
Page 3 - Cosmic Fog Vapors LLC d/b/a Next Day Vapor Products 

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 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 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'/ Harvester Co., 104 F.T.C. 949 (1984)), available at 

https://www.ftc.gov/pu blic-statements/1980/12/ftc-policy-statement-u nfairness. 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, 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 violation, 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. 
Page 4 - Cosmic Fog Vapors LLC d/b/a Next Day Vapor Products 

Please note your reference number, RW1800858, 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. 

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, 

Ann 

~~ Simoneau, J.D. 

Director 

Office of Compliance and Enforcement 

Center for Tobacco Products 

/~G- c;;,~ 

Mary K. Er,igl~ - r (j 

Associate 'Djrector 

Division of Advertising Practices 

Federal Trade Commission 
Page 5 - Cosmic Fog Vapors LLC d/b/a Next Day Vapor Products 

VIA Electronic Mail 

cc: 

Jeffrey Nelson 

Cosmic Fog Vapors 

jeff@cosmicfogvapors.com 

Jonny Tabares 

Next Day Vapor Products 

jonny@cosmicfogvapors.com 

Go Daddy, LLC 

abuse@godaddy.com 

Amazon Technologies Inc. 

abuse@amazonaws.com