WARNING LETTER
Eleaf USA
MARCS-CMS 608399 —
July 20, 2020
Delivery Method:
VIA UPS and Electronic Mail
Product:
Tobacco
Recipient:
Eleaf USA
P.O. Box 26699
Santa Ana
,
CA
92799
United States
service@eleafus.com
Issuing Office:
Center for Tobacco Products
United States
WARNING LETTER
The Center for Tobacco Products of
the U.S.
Food and Drug Administration (FDA) recently reviewed the website
https://eleafus.com
and determined that the electronic nicotine delivery system (ENDS) 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)), these products are tobacco products because they are made or derived from tobacco and intended for human consumption.  Certain tobacco products, including ENDS, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)) and 21 C.F.R. § 1100.1.  Therefore, ENDS products are required to be in compliance with the requirements in the FD&C Act.
Please be aware that, effective August 8, 2016, FDA deemed additional products meeting the definition of a tobacco product, except accessories to these newly deemed products, to be subject to regulation under the FD&C Act.  These products include, but are not limited to, ENDS (including e-cigarettes and e-liquids), cigars, and pipe tobacco.
See
Final Rule, Deeming Tobacco Products To Be Subject to the Federal Food, Drug, and Cosmetic Act, as Amended by the Family Smoking Prevention and Tobacco Control Act; Restrictions on the Sale and Distribution of Tobacco Products and Required Warning Statements for Tobacco Products, 81 Fed. Reg. 28,974 (May 10, 2016), available at
https://federalregister.gov/a/2016-10685
.
The FD&C Act requires “new tobacco products” to have premarket authorization.  A “new tobacco product” is any tobacco product that was not commercially marketed in the United States as of February 15, 2007, or any modified tobacco product that was commercially marketed after February 15, 2007 (section 910(a) of the FD&C Act; 21 U.S.C. § 387j(a)).  Generally, 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) the manufacturer of the product submitted a report under section 905(j) of the FD&C Act (21 U.S.C. § 387e(j)) and 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) the manufacturer submitted a report und
e
r sec
t
ion 905(j
)
(
1
)(A
)(i
i
) of the FD&C Act (21 U.S.C. § 387e(j)(1)(A)(ii)) and all modifications are covered by exemptions from the requirements of substantial equivalence granted by FDA under section 905(j)(3) of the FD&C Act (21 U.S.C. § 387e(j)(3)).
New Tobacco Products Without Required Marketing Authorization are Adulterated and Misbranded
Our review of the website https://eleafus.com revealed that you offer for sale or distribution
to customers in the United States the following
ENDS products without a marketing authorization order: Remit Orange Cream Pod Packs, Remit Orange Dream Nic Salt Pod Packs, Remit Tropical Blend Pod Packs, Remit Tropical Oasis Nic Salt Pod Packs, and Yami Vapor Ninja Man.
The ENDS products listed above are new tobacco products because they were not commercially marketed in the United States as of February 15, 2007.  These products do not have FDA marketing authorization orders in effect under section 910(c)(1)(A)(i) of the FD&C Act and are not otherwise exempt from the marketing authorization requirement.  Therefore, these products are adulterated under section 902(6)(A) of the FD&C Act.  In addition, they are 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.
Additional Considerations
FDA finds the Yami Vapor Ninja Man product particularly concerning because this ENDS product (see Exhibit A) features a graphic image that imitates cartoons that are commonly marketed toward and/or appealing to children.  Specifically, the ENDS product features a ninja cartoon character that appears to imitate graphics/images of cartoon ninjas
(see Exhibit B)
.  FDA is concerned about the rising youth appeal and dramatic rise in youth use of ENDS products.  As FDA has explained, any efforts to entice minors to use tobacco products, including marketing products with youth-appealing cartoons or animated characters, are of concern to
FDA.
[1]
Sales of tobacco products to individuals under the age of 21 are prohibited, and FDA is concerned that your actions likely encourage unlawful sales, maintain or increase youth use, and contribute to the public health and safety concerns associated with ENDS products.
Conclusion and Requested Actions
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 address any violations of the FD&C Act, 21 U.S.C. § 301 et seq., Chapter IX, relating to tobacco products including the tobacco regulations in 21 C.F.R. Parts 1140, 1141, and 1143, may result in FDA taking regulatory action.  However, this Warning Letter does not constitute “written notice” for purposes of section 303(f)(9)(B)(i)(II) of the FD&C Act.  Please note that adulterated and misbranded tobacco products offered for import into the United States are subject to detention and refusal of admission.
The violations discussed in this letter do not necessarily constitute an exhaustive list.  You should promptly correct any violations that are referenced above, as well as violations that are the same as or similar to those stated above, and take any necessary actions to bring your tobacco products into compliance with the FD&C Act.
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,
RW2001363,
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 about the content of this letter, please contact Ele Ibarra-Pratt at (301) 796-9235
or via email at
CTPCompliance@fda.hhs.gov
.
Sincerely,
/S/
Ann Simoneau, J.D.
Director
Office of Compliance and Enforcement
Center for Tobacco Products
VIA UPS and Electronic Mail
cc:
Eleaf US
18 Technology Dr #110
Irvine, CA 92618
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[1]
See Guidance for Industry: Enforcement Priorities for Electronic Nicotine Delivery Systems (ENDS) and Other Deemed Products on the Market Without Premarket Authorization (Revised Apr. 2020) (available at
https://www.fda.gov/media/133880/download
).
Content current as of:
07/20/2020
Regulated Product(s)
Tobacco