Judge Sides With Retailer in Challenge to FDA Tobacco Enforcement Practices

Orton Motor Company won a significant victory for tobacco retailers in recent weeks, successfully convincing a judge that the Food and Drug Administration's Center for Tobacco Products has exceeded its authority in its tobacco enforcement efforts.  The legal battle was waged alongside the National Association for Convenience Stores. 

Tobacco retailers have long objected to FDA's policy of citing them for multiple violations resulting from a single transaction or inspection. The law that they are enforcing clearly limits FDA's authority to impose violations to one-per-inspection. For example, FDA has accused retailers of two different violations in instances where a poorly trained clerk fails to check an underage customer's identification (violation #1) and sells that customer cigarettes (violation #2).
 
The Administrative Law Judge hearing the case ruled in favor of Orton Motor Company by finding that Orton's failure to check a customer's identification and sale of a tobacco product to an underage individual constituted one violation of the law rather than two (as FDA alleged). 
 
Additionally, tobacco retailers have been concerned that they do not have the right to request a hearing to challenge the first alleged tobacco sale violation.  The law calls for such violations to result in a warning letter (rather than a fine), so FDA has said there is no real "violation" to challenge. The fact is, however, that receiving a warning letter results in a retailer being more harshly punished for subsequent violations, so retailers should have the right to challenge accusations contained in a warning letter.  The judge agreed with retailers on this issue as well. 
 
NATSO has provided for its members a summary and compliance guide regarding FDA's tobacco enforcement efforts. 


via Business Feeds

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