Food and Drug Administration (FDA) Regulation of Tobacco
As you know, federal legislation signed into law on June 22, 2009 has given FDA regulatory control over tobacco products. Initially, FDA will only be allowed to regulate cigarettes, RYO and smokeless tobacco. Filtered cigars, cigars and pipe tobacco are currently not covered by the new regulations.
FDA will not be allowed to completely ban tobacco products but it will impose a number of restrictions and controls, many of which will impact retailers.
New Regulations take effect June 22, 2010
Cigarette, RYO and smokeless products containing characterizing flavors have already been banned by FDA regulation.
By June 22 of this year, manufacturers and retailers must be in compliance with a more extensive wave of FDA regulations that will affect:
FDA will hold manufacturers and retailers responsible for implementing these changes. Tantus Tobacco is committed to working closely with our customers to achieve a smooth transition through the changes these regulations require.
- Point of sale advertising (POS)
- Product packaging
- Retail practices
New Regulatory Requirements
Point of Sale Advertising: FDA is seeking to require all cigarette, RYO and smokeless advertising, including the POS ads typically used at retail locations to be black on white (no color) and to use only plain text (tombstone) lettering. A federal judge recently ruled in favor of six tobacco company plaintiffs who challenged this regulation as a violation of First Amendment free speech rights. The court has barred FDA from enforcing this regulation against the six plaintiffs. FDA has agreed that it will not enforce the color ban against anyone while an appeal of the judge’s ruling is pending. FDA has promised “adequate” notice if there is a change in their stance on enforcement of the black on white regulation.
We are monitoring this situation very closely. Please continue to check our website, www.tantustobacco.com, for the latest developments.
Manufacturers are responsible for removing/replacing signage not in compliance with FDA regulation and retailers are also responsible for ensuring that tobacco ads in their facilities are in compliance. Most Tantus POS ads are already in compliance with the new regulations as they are currently being enforced by FDA. We will replace our 24/7 light cigarette ads and may apply “20 Class A Cigarettes” labels to other ads. Our sales representatives will work with you to ensure your facility is FDA compliant on or before the June 22 deadline.
Product Packaging: FDA has banned the use of “light,” “mild,” and other words to describe tobacco products that may infer a false expectation that such products have lower health risks. In order to comply with this regulation packaging for Tantus products will begin using colors rather than words to differentiate between product lines.
- We will begin shipping product with the new packaging prior to the June 22 deadline
- The new rules do not limit the amount of time wholesalers or retailers have to sell inventories with current packaging
- We recommend stock rotation on a “first in, first out” basis to facilitate a smooth transition for your customers to the new packaging
- UPC codes will not change on packs, cartons or cases
- You may need to update cash register programs and shelf tags regarding the new packaging
Retail Practices: The biggest changes you are likely to see by June 22 will impact the manner in which you can retail your products. Unless your store becomes an “adult-only” facility, you will have to move all your tobacco products behind the counter – eliminating any self serve displays.
See the Frequently Asked Questions (FAQs) below for more information regarding requirements to operate as an Adult-Only facility, and for new rules regarding the legal age to purchase tobacco products under FDA.
Some of the new FDA rules listed below are already enforced under state laws, but will now be enforced by FDA as well:
- The distribution of free samples of cigarettes is prohibited.
- Manufacturers are prohibited from selling non-tobacco items, like T-shirts and novelty items, bearing a cigarette or smokeless tobacco brand name, logo, or selling message.
- A prohibition on items (other than cigarettes or smokeless tobacco) from being offered in exchange for credits, coupons, or proofs-of-purchase from cigarettes or smokeless tobacco products.
- Cigarettes or smokeless tobacco may not be sold to persons under age 18. Retailers are responsible for checking a photographic ID of any customer 26 years of age or younger.
- Cigarettes may not be sold in packages with fewer than 20 cigarettes.
- Cigarettes and smokeless tobacco may not be sold in vending machines, except in adult only facilities.
Sell Through Period Rules.
NO limit on the amount of time wholesalers and retailers have to sell cigarettes labeled or advertised as “light,” “low,” or “mild” that were manufactured prior to June 22, 2010 and acquired prior to July 22, 2010:
For more information, you may want to access:
Effective June 22, 2010, manufacturers may not manufacture any tobacco products that are labeled or advertised as “light,” “low,” or “mild,” or using any similar descriptors. However, manufacturers may continue to ship existing inventory of such products for an additional 30 days – through July 21, 2010.
Wholesalers and retailers may continue to sell tobacco products in their possession that are labeled, or advertised as “light,” “low,” or “mild,” or using any similar descriptor if the products were manufactured before June 22, 2010, and shipped by the manufacturer before July 22, 2010.
Wholesalers and retailers should not accept delivery of any tobacco products that are labeled or advertised as “light,” “low,” or “mild,” or using any similar descriptors after July 21, 2010. Such products could be deemed to be adulterated by FDA and subject to seizure.
www.fda.gov/tobacco - Home page for the FDA’s Center for Tobacco Products
TobaccoindustryQuestions@fda.hhs.gov – for tobacco industry questions
Smallbiz.firstname.lastname@example.org – for small business industry questions
FDA Center for Tobacco Products Information Line: 1-877-287-1373
We appreciate very much the fact that you carry Tantus products in your retail store(s) and we stand ready to help you understand and comply with the new FDA rules in any way possible.