WARNING LETTER
Vapes and Such
MARCS-CMS 695524 —
October 29, 2024
Delivery Method:
VIA Electronic Mail
Reference #:
RW2402229
Product:
Tobacco
Recipient:
Vapes and Such
United States
suppor@vapesandsuch.com
Issuing Office:
Center for Tobacco Products
United States
October 29, 2024
WARNING LETTER
To Whom It May Concern:
The Center for Tobacco Products of the U.S. Food and Drug Administration (FDA) recently reviewed the website https://vapesandsuch.com and determined that 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 or contain nicotine from any source and intended for human consumption. Certain tobacco products, including ENDS products 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, and are required to be in compliance with the requirements in the FD&C Act.
Please be aware that, on March 15, 2022, the President signed legislation to amend the FD&C Act to extend FDA’s jurisdiction to products “containing nicotine from any source,” not just nicotine derived from tobacco. See Consolidated Appropriations Act, 2022, Public Law 117-103, Division P, Title I, Subtitle B. Specifically, this legislation expanded the definition of “tobacco product” under section 201(rr) of the FD&C Act (21 U.S.C. § 321(rr)) to include products containing nicotine from any source. Tobacco products, including ENDS products containing nicotine from any source, must be in compliance with the FD&C Act and its implementing regulations. For more information, please see https://www.fda.gov/tobacco-products/ctp-newsroom/requirements-products-made-non-tobacco-nicotine-take-effect-april-14.
Generally, to be legally marketed in the United States, the FD&C Act requires “new tobacco products” to have a premarket authorization order in effect. 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 under section 905(j)(1)(A)(ii) 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
FDA has determined that you offer for sale or distribution to customers in the United States ENDS products that lack a marketing authorization order: Swype 30K Disposable Vape Blue Razz Ice, Posh Xtron 30000 Disposable Vape Grape Blow Pop, V-Play 20000 Disposable Vape Pineapple Punch, and Posh Pro Max 30000 Berry Breeze.
The tobacco 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 (21 U.S.C. § 387b(6)(A)). In addition, they are misbranded under section 903(a)(6) of the FD&C Act (21 U.S.C. § 387c(a)(6)) 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)).
Additional Considerations
FDA finds these products particularly concerning because the product labeling and/or advertising for Swype 30K Disposable Vape, Posh Xtron 30000 Disposable Vape, and Posh Pro Max 30000 (see Exhibit A) may be attractive to youth by imitating a smartphone or other smart technology (see Exhibit B), and the product labeling and/or advertising for V-Play 20000 Disposable Vape (see Exhibit C) may be attractive to youth by imitating gaming products (see Exhibit D).
In particular, youth and young adults may be attracted to the products’ design and functionalities imitating smart phones and other smart technology, including:
Swype 30K Disposable Vape
• “It's not just a vape, it's an entertainment hub!”
• “Touch Screen & Bluetooth: Navigate features and connect to your devices with ease.”
• “Beyond Vaping: Stay connected with call/text notifications, play games, personalize your vape, and even check the weather - all on your Swype 3K! [sic]”
• “The Swype 30K Disposable Vape allows you to personalize your device with custom wallpaper options.”
• “The Swype 30K Disposable Vape features a calculator function for quick and convenient calculations on the go.”
Posh Xtron 30000 Disposable Vape
• “Advanced Touchscreen: Includes call and text notifications, built-in games, and a calculator for added utility.”
• “Customizable Options: Allows for personalized wallpapers and real-time weather updates to tailor your experience.”
• “User-Friendly Design: Adjustable airflow, a built-in entertainment system, and a Type-C rechargeable battery for convenience.”
• “The Posh XTRON 30000 Disposable Vape offers more than just a vaping device; it provides a comprehensive, customizable experience with cutting-edge features and a wide range of flavors to enhance your vaping journey.”
Posh Pro Max 30000
• “Bluetooth Connectivity: Sync with your smartphone for weather updates, time display, and calendar management.”
• “All-in-One Functionality: Customize wallpapers, locate your phone, or play games directly from your vape.”
V-Play 20000 Disposable Vape
• “Your Ultimate Vape & Play Companion”
• “This groundbreaking disposable vape offers a blend of enduring flavor and gaming excitement, ensuring endless enjoyment wherever you go.”
• “Gaming Thrills: Take a vaping break and immerse yourself in retro gaming fun on the vibrant 1.77 inch HD display. Conquer high scores in classic fighter jet, Pac-Man inspired, and Tetris-like games.”
• “The V-Play 20000 caters to: Gaming enthusiasts seeking a seamless vape and play experience” and “Anyone craving a distinctive and entertaining vaping adventure.”
Further, the products’ design may be attractive to youth because the design helps conceal the nature of the product as a tobacco product from parents, teachers, or other adults, and therefore could be openly carried without revealing to parents, teachers, or other adults that the products are tobacco products. FDA is concerned about the youth appeal and widespread youth use of ENDS products, which are the most common tobacco products used by students reporting current tobacco use. Any efforts to entice youth to use tobacco products are of concern to FDA. Sales of such unauthorized products 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
FDA has determined that your firm markets new tobacco products in the United States that lack premarket authorization. All new tobacco products on the market without the statutorily required premarket authorization are marketed unlawfully and are subject to enforcement action at FDA’s discretion.
For a list of products that received marketing granted orders, please visit our website: https://www.fda.gov/tobacco-products/market-and-distribute-tobacco-product/tobacco-products-marketing-orders#PMTAView%20all%20marketing%20granted.
It is your responsibility to ensure that all tobacco products you sell and/or distribute in the United States and all related labeling and/or advertising on any websites or other media (such as e-commerce, social networking, or search engine websites), and in any retail establishments in which you advertise, comply with each applicable provision of the FD&C Act and FDA’s implementing regulations. Failure to adequately address any violations of the FD&C Act, 21 U.S.C. § 301 et seq., or its implementing regulations relating to tobacco products including the tobacco regulations in 21 C.F.R. Parts 1140, 1141, and 1143, may lead to regulatory action, including, but not limited to, civil money penalties, seizure, and/or injunction. 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 tobacco products offered for import into the United States that appear to be adulterated and/or misbranded may be detained or refused admission.
The violations discussed in this letter do not necessarily constitute an exhaustive list. You should take prompt action to address any violations that are referenced above, and take any necessary actions to bring these 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 actions to address any violations and bring these products into compliance, including the dates on which you discontinued the violative sale, and/or distribution of these tobacco products and your plan for maintaining compliance with the FD&C Act. If you believe that these products are not in violation of the FD&C Act, include your reasoning and any supporting information for our consideration. This letter notifies you of our findings and provides you with an opportunity to address them. You can find the FD&C Act through links on FDA’s homepage at http://www.fda.gov.
Please note your reference number, RW2402229, in your response and direct your response via email at CTPCompliance@fda.hhs.gov and 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 CTPCompliance@fda.hhs.gov.
Sincerely,
/S/
John E. Verbeten
Director
Office of Compliance and Enforcement
Center for Tobacco Products
VIA Electronic Mail
cc:
GoDaddy.com, LLC
abuse@godaddy.com
Bigcommerce Inc.
abuse@bigcommerce.com
Content current as of:
10/30/2024
Regulated Product(s)
Tobacco