WARNING LETTER
RYOSupply.com
MARCS-CMS 574911 —
February 26, 2019
Product:
Tobacco
Recipient:
RYOSupply.com
1645 Central Avenue
Albany
,
NY
12205
United States
Issuing Office:
Center for Tobacco Products
United States
MARCH 4, 2019
VIA UPS and Electronic Mail
RYOSupply.com
1645 Central Avenue
Albany, New York  12205
aaron@ryosupply.com
WARNING LETTER
The Center for Tobacco Products of the U.S. Food and Drug Administration (FDA) recently reviewed the website
http://www.ryosupply.com
and determined that the smokeless tobacco, waterpipe tobacco, electronic nicotine delivery system (ENDS), and e-liquid products listed there are advertised 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 smokeless tobacco,
waterpipe tobacco, ENDS, and e-liquid products, are subject to FDA jurisdiction under section 901(b) of the FD&C Act (21 U.S.C. § 387a(b)).
FDA has determined that the Oliver Twist Original Chewing Tobacco Bits smokeless tobacco product is misbranded under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)) because you sold this productto a person younger than 18 years of age.  FDA has also determined that several waterpipe tobacco, ENDS, and e-liquid products advertised and offered for sale or distribution on your website are misbranded under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)) and 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 your website regarding waterpipe tobacco, ENDS, and e-liquid products fails to include the required nicotine warning statement for these waterpipe tobacco, ENDS, and e-liquid products.
Sales to Minors Violation
FDA’s investigation of the website
http://www.ryosupply.com
revealed that you sold a smokeless tobacco product to a minor. Specifically, during our investigation of
http://www.ryosupply.com
, a person younger than 18 years of age purchased the Oliver Twist Original Chewing Tobacco Bits smokeless tobacco product from your website. No retailer may sell cigarettes, cigarette tobacco and/or roll-your-own tobacco, or smokeless tobacco to a person younger than 18 years of age under 21 C.F.R. § 1140.14(a).  Under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)), tobacco products are misbranded if sold or distributed in violation of regulations prescribed under section 906(d) of the FD&C Act, including those within 21 C.F.R. Part 1140. Because this product is sold or distributed to persons younger than 18 years of age in violation of 21 C.F.R. § 1140.14(a), this product is misbranded under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)).
Waterpipe Tobacco, Electronic Nicotine Delivery System (ENDS), and E-Liquid Products with Labeling and/or Advertising that Fails to Include the Required Nicotine Warning Statement are Misbranded
Additionally, our review of the website
http://www.ryosupply.com
revealed that the labeling and/or advertising for several waterpipe tobacco, ENDS, and e-liquid products that you advertise and offer for sale or distribution in the United States do not include the required nicotine warning statement, for example: Haze Hookah Tobacco Blueberry, Haze Hookah Tobacco Cherry, Haze Hookah Tobacco Coco Roast, Haze Hookah Tobacco Grape, Haze Hookah Tobacco Melon Blast, Haze Hookah Tobacco Seduction, Haze Hookah Tobacco Strawberry, Haze Hookah Tobacco Twice the Apple, NJoy Bold Tobacco Flavor E-Cigarette 5Pack, Flave eHookah – Peach, Flave eHookah – Pineapple, Flave eHookah – Mango, “blu e-Cigarette Flavor Magnificent Menthol Cartridge 5-Piece Box – Black High,” “blu e-Cigarette Flavor Cherry Crush Cartridge 5-Piece Box – Black High,” Suicide Bunny E-Liquid – Derailed Flavor, Suicide Bunny E-Liquid – The O.B., Suicide Bunny E-Liquid – Madrina Flavor, Halo E Liquid – Freedom Juice, Halo E Liquid – Tiki Juice, Halo E Liquid – Captain Jack, Voodoo eLiquid Watermelon, Voodoo eLiquid Blueberry, and Voodoo eLiquid Menthol. Under 21 C.F.R. § 1143.3, labeling and advertising for cigarette tobacco, roll-your-own tobacco, and covered tobacco products (other than cigars), such as waterpipe tobacco, ENDS, and e-liquid products, must bear the following warning statement:
WARNING:  This product contains nicotine. Nicotine is an addictive chemical.
For cigarette tobacco, roll-your-own tobacco, and covered tobacco products other than cigars, it is unlawful for any person to manufacture, package, sell, offer to sell, distribute, or import for sale or distribution in the United States such product unless such tobacco product package bears the following required warning statement on the package label: “WARNING: This product contains nicotine. Nicotine is an addictive chemical” (21 C.F.R. § 1143.3(a)).  It also is unlawful for such tobacco product manufacturer, packager, importer, distributor, or retailer of the tobacco product to advertise or cause to be advertised within the United States any tobacco product unless each advertisement bears the required warning statement (21 C.F.R. § 1143.3(b)).  Under 21 C.F.R. § 1140.3, a “covered tobacco product” is defined as any tobacco product deemed to be subject to the FD&C Act under 21 C.F.R. § 1100.2, excluding components or parts not made or derived from tobacco. Before 21 C.F.R. § 1100.2 became effective, only cigarettes, smokeless tobacco, roll-your-own tobacco, and cigarette tobacco were subject to chapter IX of the FD&C Act. 21 C.F.R. § 1100.2 deems all other tobacco products, except accessories of such tobacco products, subject to chapter IX and its implementing regulations. The products cited in this violation are “covered tobacco products.”  Under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)), tobacco products are misbranded if sold or distributed in violation of regulations prescribed under section 906(d) of the FD&C Act, including those within 21 C.F.R. Part 1143.  Because your website regarding waterpipe tobacco, ENDS, and e-liquid products does not include the required nicotine warning statement for these products, in violation of 21 C.F.R. § 1143.3(a) and/or 21 C.F.R. § 1143.3(b), your waterpipe tobacco, ENDS, and e-liquid products, are misbranded under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)).
In addition, a tobacco product is misbranded under section 903(a)(1) of the FD&C Act (21 U.S.C. § 387c(a)(1)) if its labeling is false or misleading in any particular. A tobacco product is misbranded under section 903(a)(7)(A) of the FD&C Act (21 U.S.C. § 387c(a)(7)(A)) if, in the case of any tobacco product distributed or offered for sale in any State, its advertising is false or misleading in any particular.  Under section 201(n) of the FD&C Act (21 U.S.C. § 321(n)), in determining whether labeling and/or advertising is misleading, the agency considers, among other things, the failure to reveal material facts concerning the consequences that may result from the customary or usual use of the product. Because your website regarding waterpipe tobacco, ENDS, and e-liquid products does not include the required nicotine warning statement for these products, your waterpipe tobacco, ENDS, and e-liquid products are 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)).
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 those 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 this website, on any other websites (including e-commerce, social networking, or search engine websites), in any other media in which you advertise, and any retail establishments 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, no-tobacco-sale orders, 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.
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, RW1901038, 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 Electronic Mail
cc:
Inktomi Corporation (INKT)
abuse@yahoo-inc.com
Tucows Domains Inc.
domainabuse@tucows.com
Content current as of:
03/04/2019
Regulated Product(s)
Tobacco