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  5. American Wholesale Distribution, Inc. d/b/a Lunar E-Cigs - 577363 - 03/06/2020
  1. Warning Letters

WARNING LETTER

American Wholesale Distribution, Inc. d/b/a Lunar E-Cigs MARCS-CMS 577363 —

Delivery Method:
VIA UPS and Electronic Mail
Product:
Tobacco
Recipient:
Recipient Name
David Ross
American Wholesale Distribution, Inc. d/b/a Lunar E-Cigs

4730 Woodman Ave #360
Sherman Oaks, CA 91423
United States

info@lunar-ecigs.com
Issuing Office:
Center for Tobacco Products

10903 New Hampshire Avenue
Silver Spring, MD 20993
United States

WARNING LETTER

MAR 6, 2019

Dear David Ross:

The Center for Tobacco Products of the U.S. Food and Drug Administration (FDA) recently reviewed the website https://lunar-eciqs.com and determined that thee-liquid 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)), 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 electronic nicotine delivery systems (ENDS) and e-liquids, 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 Caramel Stardust E-Liquid 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 product to a person younger than 18 years of age. Additionally, FDA has determined that the 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 ENDS and e-liquid products fails to include the required nicotine warning statement for these ENDS and e-liquid products.

Sales to Minors Violation

FDA's investigation of the website https://lunar-eciqs.com revealed that you sold an e-liquid product to a minor. Specifically, during our investigation of https://lunar-eciqs.com, a person younger than 18 years of age purchased Caramel Stardust E-Liquid from your website. No retailer may sell covered tobacco products, including e-liquid, cigar, pipe tobacco, waterpipe tobacco, and dissolvable tobacco products, as well as ENDS products that contain any tobacco derivative, to a person younger than 18 years of age under 21 C.F.R. § 1140.14(b). Under 21 C.F.R. § 1140.3, a "covered tobacco product" is defined as any tobacco product deemed to be subject to chapter IX of the FD&C Act by 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 product cited in this violation is a "covered tobacco product." 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(b), this product is misbranded under section 903(a)(7)(B) of the FD&C Act (21 U.S.C. § 387c(a)(7)(B)).

Electronic Nicotine Delivery System (ENDS) and E-Liquid Products with Labeling and/or Advertising that Fail to Include the Required Nicotine Warning Statement are Misbranded

Additionally, our review of the website https://lunar-ecigs.com revealed that the labeling and/or advertising for the following 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: Banana Galaxy Disposable E-Hookah, Big Bang Blueberry Disposable E-Hookah, Cosmic Cherry Disposable E-Hookah, Planet Peach Disposable EHookah, Solar Strawberry Disposable E-Hookah, Venus Vanilla Disposable E-Hookah, Atomic Apple ELiquid, Banana Galaxy E-Liquid, Big Bang Blueberry E-Liquid, Blue Porn Blast E-Liquid, Caramel Stardust ELiquid, Celestial Coffee E-Liquid, Cosmic Cherry E-Liquid, Electric Cola E-Liquid, Galactic Grape E-Liquid, Hubble Bubble Gum E-Liquid, Jet Juicy E-Liquid, Jupiter Whiskey E-Liquid, Luna Colada E-Liquid, Mars Mango E-Liquid, Mercury Menthol E-Liquid, Nuclear Orange E-Liquid, Pineapple Earth E-Liquid, Planet Peach E-Liquid, Quantum Lemon E-Liquid, Solar Strawberry E-Liquid, Strawberry Kiwi Star E-Liquid, Titan Tobacco E-Liquid, Venus Vanilla E-Liquid, and Watermelon Matter E-Liquid. 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 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 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 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 ENDS and e-liquid products does not include the required nicotine warning statement for these products, your 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 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 on this website, on any other websites (including e-commerce, social networking, or search engine websites), and in any other media in which you advertise 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 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, RW1901047, 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 UPS and Electronic Mail

cc:

American Wholesale
21224 Vanowen St
Canoga Park, CA 91303

David Ross, Registered Agent
4145 Colbath Ave
Sherman Oaks, CA 91423
dipmanross@aol.com

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