Issue link: http://read.dmtmag.com/i/107993
REGULATORY CORNER FDA Calls Out the "Tobacco Posse" to Roundup Retailers Mark S. Morgan, PMAA Regulatory Counsel Washington, D.C. - When confronted with serious issues of crime, disorder, vice, and violence, the pioneers of the old West turned to members of their communities to enforce order by rounding up a posse. The posse is a common law invention that authorized the local sheriff to conscript any able-bodied person to assist in rustling up criminals and other assorted varmints who posed a threat to the peace and good order of the town folk. All too often, however, the posse would quickly turn into a vengeful mob, take the law - and a noose - into their own hands and end up lynching an innocent man. Think grimacing villagers with torches and pitchforks. Due to their penchant for taking the law into their own hands often at the cost of fairness, justice and truth, the posse soon fell into disfavor and long ago went the way of the buggy whip and fax machine. Or so history would have you believe. The 21st century version of the posse is being conjured up by the Food and Drug Administration (FDA) in an effort to ferret out merchants who are suspected – proof not required - of violating the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act). The FDA's Center for Tobacco Products (CTP) is stepping up enforcement of the Tobacco Control Act by enlisting the help of anti-tobacco activists and the public at large with a new option for reporting potential violations. The CTP has just issued a new downloadable Potential Tobacco Product Violations Reporting form that anyone can fill out to report suspected violations such as sales to minors. The FDA currently regulates cigarettes, cigarette tobacco, roll your own tobacco and smokeless tobacco products. The FDA's stated enforcement goal under the Tobacco Control Act is "to prevent Americans from using tobacco products and encouraging current users to quit." The new violation reporting form essentially deputizes the public at large to "investigate and report" suspected violations by their local retailer. The obvious danger here of course is that disgruntled employees, unhappy customers, self appointed tobacco warriors, assorted cranks and anyone else with 20 OIL PROPHETS WINTER 2013 an axe to grind will file frivolous and unsubstantiated complaint against retailers. A result made more likely by the fact that the complaints may be filed anonymously by email and will remain confidential. Suspected violations by retailers that can be reported on the form include: • • • • • • Sales to minors Flavored cigarette sales Advertising/promotion/marketing restrictions; distributing t-shirts or other novelty items with the brand name of a cigarette or smokeless tobacco product. Free samples Vending machines in prohibited areas/self-service display/direct access to cigarette or smokeless tobacco Sale of cigarettes in packs of less than 20 The information provided on the form is reviewed by the FDA. Enforcement authorities then determine what follow-up action, is appropriate – cowboy necktie party notwithstanding. The complaint can also be mailed or called in on a special FDA hotline set up for the purposeanonymity guaranteed here, too. It remains to be seen how seriously the FDA will follow up on suspected violations filed by the public. Given shrinking government resources the answer may be "not much". Still, retailers should take note that the posse rides again and their trail leads straight to you. The new FDA complaint form may be downloaded at: www.fda.gov/TobaccoProducts.