Judge Sides with Retailers on Tobacco Violations

NACS and Orton Motor Co. achieve victory in legal challenge to some practices by the FDA’s Center for Tobacco Products regarding violation inspections.

February 11, 2016

ALEXANDRIA, Va – NACS and retail member Orton Motor Co. launched a legal challenge in December 2015 to some of the practices the U.S. Food and Drug Administration’s Center for Tobacco Products (CTP) has engaged in to enforce its tobacco regulations. This week, Administrative Law Judge Lewis T. Booker Jr. ruled in favor of Orton and NACS.

NACS members have been concerned that retailers have been cited for multiple violations of the Tobacco Control Act in a single transaction (failing to check ID and making an underage sale) and/or a single inspection. Retailers have also been concerned that they have not had the right to a hearing to challenge a violation the first time they receive one from CTP. 

Judge Booker ruled in favor of Orton on both of these questions. He decided that Orton’s failure to check an ID and sale of the product to an underage individual in one transaction amounted to one violation of the Tobacco Control Act—not two—as CTP had alleged.

The Judge also ruled that this was Orton’s first violation because, even though Orton had received a warning letter for a 2013 violation, Orton was not given a chance to ask for a hearing (the necessary due process to challenge that violation). Without due process, the first violation was in effect never assessed. 

The judge’s ruling vindicates NACS's longtime view that CTP was enforcing the law in a way that was inconsistent with the language of the law. This decision, however, might not be the final word on these questions. CTP has 30 days from the date of the decision in which it can appeal. If it does, NACS plans to continue to press for confirmation of the decision that retailers can only be cited for one violation of the law in a single inspection, and that retailers must be afforded due process on every alleged violation.

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