WARNING LETTER
Joseph Anderson d/b/a Smokin Joes
MARCS-CMS 577579 —
April 30, 2019
Product:
Tobacco
Recipient:
Recipient Name
Joseph M. Anderson
Recipient Title
Owner
Joseph Anderson d/b/a Smokin Joes
4900 Indian Hill Road
Lewiston
,
NY
14092
United States
Issuing Office:
Center for Tobacco Products
United States
VIA UPS and Electronic Mail
APR 30, 2019
Joseph M. Anderson
Owner
Joseph Anderson, d/b/a Smokin Joes
4900 Indian Hill Road
Lewiston, NY  14092
blacey@smokinjoe.com
WARNING LETTER
Dear Mr. Anderson:
The Center for Tobacco Products of
the U.S.
Food and Drug Administration (FDA) has reviewed your submissions to the FDA and our inspection records, and determined that Joseph Anderson d/b/a Smokin Joes manufactures and distributes cigarette products for commercial distribution in the United States, and that the cigarette products 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.  Cigarette products are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)).
New Tobacco Products Without Required Marketing Authorization Are Adulterated and/or Misbranded
FDA has determined that you have manufactured, sold, and/or distributed to customers in the United States the cigarette products listed in the table below without a marketing authorization order.
Product Name
Date of NSE Order
STN
Smokin Joes Blue 100 Size Box Fire Safe
10/12/2018
SE0002985
Smokin Joes Blue 100 Size Soft Pack Fire Safe
10/12/2018
SE0002986
Smokin Joes Blue King Size Box Fire Safe
10/12/2018
SE0002987
Smokin Joes Blue King Size Soft Pack Fire Safe
10/12/2018
SE0002988
Smokin Joes Gold 100 Size Box Fire Safe
10/12/2018
SE0002990
Smokin Joes Gold 100 Size Soft Pack Fire Safe
10/12/2018
SE0002991
Smokin Joes Gold King Size Box Fire Safe
9/6/2017
SE0004632
Smokin Joes Gold King Size Soft Pack Fire Safe
9/6/2017
SE0004629
Smokin Joes Menthol 100 Size Box Fire Safe
10/12/2018
SE0002993
Smokin Joes Menthol 100 Size Soft Pack Fire Safe
10/12/2018
SE0002994
Smokin Joes Menthol Gold 100 Size Box Fire Safe
10/12/2018
SE0002995
Smokin Joes Menthol Gold 100 Size Soft Pack Fire Safe
10/12/2018
SE0002996
Smokin Joes Menthol Gold King Size Box Fire Safe
10/12/2018
SE0002997
Smokin Joes Menthol Gold King Size Soft Pack Fire Safe
8/23/2018
SE0002998
Smokin Joes Menthol King Size Box Fire Safe
8/23/2018
SE0003001
Smokin Joes Menthol King Size Soft Pack Fire Safe
8/23/2018
SE0003000
Smokin Joes Natural Menthol 100 Size Box Fire Safe
11/30/2017
SE0004989
Smokin Joes Natural Menthol 100 Size Soft Pack Fire Safe
8/23/2018
SE0003012
Smokin Joes Natural Menthol Gold 100 Size Soft Pack Fire Safe
8/23/2018
SE0003015
Smokin Joes Natural Menthol King Size Box Fire Safe
8/23/2018
SE0003014
Smokin Joes Natural Purple 100 Size Box Fire Safe
8/23/2018
SE0003020
Smokin Joes Natural Purple 100 Size Soft Pack Fire Safe
8/23/2018
SE0003021
Smokin Joes Natural Purple King Size Box Fire Safe
8/23/2018
SE0003022
Smokin Joes Natural Purple King Size Soft Pack Fire Safe
8/23/2018
SE0003023
Smokin Joes Natural Silver 100 Size Box Fire Safe
7/5/2018
SE0003026
Smokin Joes Natural Silver 100 Size Soft Pack Fire Safe
7/5/2018
SE0003027
Smokin Joes Natural Silver King Size Box Fire Safe
7/5/2018
SE0003028
Smokin Joes Natural Silver King Size Soft Pack Fire Safe
7/5/2018
SE0003029
Smokin Joes Natural White 100 Size Box Fire Safe
7/5/2018
SE0003030
Smokin Joes Natural White 100 Size Soft Pack Fire Safe
7/5/2018
SE0003031
Smokin Joes Natural White King Size Soft Pack Fire Safe
7/5/2018
SE0003032
Smokin Joes Red 100 Size Box Fire Safe
8/23/2018
SE0003005
Smokin Joes Red 100 Size Soft Pack Fire Safe
8/23/2018
SE0003006
Smokin Joes Red King Size Soft Pack Fire Safe
9/6/2017
SE0004615
The FD&C Act generally requires premarket review for any “new tobacco product,” which means any tobacco product that was not commercially marketed in the United States as of February 15, 2007, or any modification of a tobacco product where the modified product was commercially marketed in the United States after February 15, 2007 (section 910(a) of the FD&C Act; 21 U.S.C. § 387j(a)).
[1]
A marketing authorization order under section 910(c)(1)(A)(i) of the FD&C Act (21 U.S.C. § 387j(c)(1)(A)(i)) is required for a new tobacco product unless: (1) FDA issues an order finding the product substantially equivalent to a predicate tobacco product (section 910(a)(2)(A) of the FD&C Act); or (2) FDA issues an order fi
n
ding the product to be exempt
f
r
o
m the requ
i
rements
o
f substantial equivalence
(SE Exemption Order),
and you submit a report und
e
r sec
t
ion 905(j
)
(
1
) of the FD&C Act (21 U.S.C. § 387e(j)(1)) (Abbreviated Report) that includes the information required in sections 905(j)(1)(A)(ii) and 905(j)(1)(B) of the FD&C Act, and ninety days have passed since FDA receipt of your Abbreviated Report.
During FDA’s December 18–20, 2018 inspection of your manufacturing establishment, FDA determined that the cigarette products listed above were new tobacco products that had been commercially marketed in the United States after receiving NSE orders.  These products did not have required FDA marketing authorization orders in effect under section 910(c)(1)(A)(i) of the FD&C Act.  Therefore, they were adulterated under section 902(6)(A) of the FD&C Act and/or misbranded under section 903(a)(6) of the FD&C Act because a notice or other information respecting these products was not provided as required by section 905(j) of the FD&C Act (21 U.S.C. § 387e(j)).  The introduction into interstate commerce of any tobacco product that is adulterated or misbranded is a prohibited act under section 301(a) of the FD&C Act (21 U.S.C. § 331(a)).
Additionally, to the extent that a report was required under section 905(j) of the FD&C Act, the failure to provide such report is a prohibited act under section 301(p) of the FD&C Act (21 U.S.C. § 331(p)).
In the time since FDA’s December 18–20, 2018 inspection, some of the cigarette products listed above have received SE Exemption Orders.  To legally market these products, however, you must submit an Abbreviated Report and ninety days must have passed since FDA receipt of your Abbreviated Report.  As of the date of this letter, neither of these requirements have been met for these products and, as such, these products cannot be legally marketed.  Commercial marketing of these products prior to satisfying these requirements would render your products misbranded under section 903(a)(6) of the FD&C Act.  The introduction into interstate commerce of any tobacco product that is misbranded is a prohibited act under section 301(a) of the FD&C Act (21 U.S.C. § 331(a)).
In the time since FDA’s December 18–20, 2018 inspection, you have indicated that some of the cigarette products listed above have been “reformulated” to be identical to other cigarette products that are lawfully marketed pursuant to section 905(j) of the FD&C Act.  Please provide further evidence—such as production records and master manufacturing records—that these products have been reformulated to lawfully marketed products.
Conclusion and Requested Actions
The 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 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/or misbranded tobacco products offered for import into the United States are subject to detention and refusal of admission.
Please submit a written response to this letter within 15 working days from the date of receipt describing your corrective and preventative actions, including the dates on which you discontinued the violative sales, and/or distribution of these tobacco products, confirmation that you are not introducing any products without required marketing authorization into interstate commerce, further evidence on reformulated products, and your plan for maintaining and ensuring future compliance with the premarket authorization requirements of 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, ER1900018, in your response and direct your response to the following address:
DEM-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 about the content of this letter, please contact Lillian Ortega at (240) 402-9041 or
Lillian.Ortega@fda.hhs.gov
.
Sincerely,
/S/
Ann Simoneau, J.D.
Director
Office of Compliance and Enforcement
Center for Tobacco Products
[1]
A “provisional” tobacco product—i.e., a new tobacco product first introduced or delivered for introduction into interstate commerce for commercial distribution after February 15, 2007, and prior to March 22, 2011, and for which a section 905(j) report (substantial equivalence report) was submitted no later than March 22, 2011—can be legally marketed unless FDA issues a not substantially equivalent (NSE) order for the product.
Content current as of:
05/07/2019
Regulated Product(s)
Tobacco