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###### Department of Health and Human Services

###### Food and Drug Administration

          - [Docket No. FDA–2010–D–0189]

# AGENCY:

Food and Drug Administration, HHS.

# ACTION:

Notice.

# SUMMARY:

The Food and Drug Administration (FDA) is announcing the availability of the guidance entitled “Enforcement Policy Concerning Certain Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco.” This guidance document discusses FDA's intended enforcement policies with respect to two provisions of the final regulations restricting the sale and distribution of cigarettes and smokeless tobacco to protect children and adolescents. One provision restricts the use of a trade or brand name of a nontobacco product as the trade or brand name for a cigarette or smokeless tobacco product. The second provision requires that labeling or print advertisements appear in a black-and-white text only format, except in certain “adult only” locations or in publications that do not have significant readership by children and adolescents under the age of 18. This guidance document will be implemented immediately, but it remains subject to comment in accordance with the agency's good guidance practices (GGPs).

# DATES:

Submit electronic or written comments on this guidance at any time. General comments on agency guidance documents are welcome at any time.

# ADDRESSES:

                        Submit written requests for single copies of the guidance document entitled “Enforcement Policy Concerning Certain Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco” to the Center for Tobacco Products, Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850–3229. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the guidance document may be sent. See the                         **SUPPLEMENTARY INFORMATION**                         section for information on electronic access to the guidance.                    

                        Submit electronic comments to                         *http://www.regulations.gov*. Submit written comments concerning this guidance to the Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Identify comments with the docket number found in brackets in the heading of this document.                    

# FOR FURTHER INFORMATION CONTACT:

                        Annette Marthaler, Center for Tobacco Products, Food and Drug Administration, 9200 Corporate Blvd., Rockville, MD 20850, 1–877–287–1373,                         *annette.marthaler@fda.hhs.gov*.                    

#                     SUPPLEMENTARY INFORMATION:                          ( print page 25272)    

## I. Background

                    In the                     **Federal Register**                     of March 19, 2010 (75 FR 13225), FDA published final regulations restricting the sale and distribution of cigarettes and smokeless tobacco to protect children and adolescents. This guidance document discusses FDA's intended enforcement policies with respect to two provisions of the final regulations restricting the sale and distribution of cigarettes and smokeless tobacco to protect children and adolescents.                

                    One provision, § 1140.16(a) (21 CFR 1140.16(a)), specifies that manufacturers may not use a trade or brand name of a nontobacco product as the trade or brand name for a cigarette or smokeless tobacco product unless the trade or brand name was on both the tobacco product and a nontobacco product sold in the United States on January 1, 1995. FDA is aware of concerns regarding this provision and is considering what changes, if any, would be appropriate to address those concerns.1                     While FDA has this issue under consideration, it intends to exercise its enforcement discretion concerning § 1140.16(a) (21 CFR 1140.16(a)) not to commence enforcement actions under this provision for the duration of its consideration where:                

(1) The trade or brand name of the cigarettes or smokeless tobacco product was registered, or the product was marketed, in the United States on or before June 22, 2009; or

(2) The first marketing or registration in the United States of the tobacco product occurs before the first marketing or registration in the United States of the nontobacco product bearing the same name; provided, however, that the tobacco and nontobacco product are not owned, manufactured, or distributed by the same, related, or affiliated entities (including as a licensee).

                    The second provision is § 1140.32(a) (21 CFR 1140.32(a)). Under this section of the final rule, manufacturers, distributors, and retailers must use only black text on a white background for labeling or advertising (with certain exceptions). The United States District Court for the Western District of Kentucky recently issued an order permanently enjoining FDA from enforcing § 1140.32(a) (formerly 21 CFR 897.32(a) of the 1996 final rule that published in the                     **Federal Register**                     of August 28, 1996 (61 FR 44396)) (                    *Commonwealth Brands, Inc.*                     v.                     *United States*, No. 1:09-CV-117-M (W.D. Ky. Jan. 4, 2010)). As required by section 102 of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), the effective date for § 1140.32(a) is June 22, 2010. At this time, however, in light of the court's order in                     *Commonwealth Brands*, FDA intends to exercise its enforcement discretion concerning § 1140.32(a) not to commence enforcement actions under this provision during the pendency of the litigation irrespective of whether the entity is a party to the pending lawsuit or located in the Western District of Kentucky.                

FDA intends that the exercise of enforcement discretion expressed in this guidance document for §§ 1140.16(a) and 1140.32(a) begin upon the effective date of the final rule (June 22, 2010). In accordance with FDA's GGP regulation (§ 10.115 (21 CFR 10.115)), you may comment on this guidance at any time. The agency will consider your comments and determine whether to revise the guidance at a later date.

## II. Significance of Guidance

FDA is issuing this guidance document as a level 1 guidance consistent with FDA's GGP regulation (§ 10.115). This guidance document is being implemented immediately without prior public comment under § 10.115(g)(2) because the agency has determined that prior public participation is not feasible or appropriate. This document provides guidance on regulations that are required by statute (section 102 of the Tobacco Control Act); moreover, the statute directs that the regulations take effect on June 22, 2010 (section 102(a)(2)(F) of the Tobacco Control Act). It is important that FDA explain its enforcement policy for these two provisions before that date. 

## III. Comments

                    Interested persons may submit to the Division of Dockets Management (see                     **ADDRESSES**                    ) electronic or written comments regarding this document. Submit a single copy of electronic comments or two paper copies of any mailed comments, except that individuals may submit one paper copy. Comments are to be identified with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.                

## IV. Electronic Access

                    An electronic version of the guidance document is available on the Internet at                     *http://www.regulations.gov*                     and                     *http://www.fda.gov/​TobaccoProducts/​GuidanceComplianceRegulatoryInformation/​default.htm*.                

Dated: May 4, 2010.

Leslie Kux,

Acting Assistant Commissioner for Policy.

# Footnotes

1.                             Under section 102(a)(3)-(4) of the Family Smoking Prevention and Tobacco Control Act (21 U.S.C. 387a-1(a)(3)-(4)), FDA may amend the final rule after issuing a proposed rule for notice and comment.                    
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[FR Doc. 2010–10934 Filed 5–5–10; 11:15 am]

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