SILVER SPRING, Md. — The latest legal round over tobacco inspection violations has gone to the Food and Drug Administration (FDA).
On June 30, the U.S. Department of Health and Human Services' Departmental Appeals Board (DAB) issued a final decision finding in favor of the FDA's Center for Tobacco Products (CTP) in a case brought by CTP against the tobacco retailer Orton Oil Co., dba Orton's Bagley.
The ruling overturns a decision by an administration law judge in which the tobacco retailer repeatedly sold tobacco products to a minor and failed to verify the age of a tobacco product purchaser by means of photographic identification.
According to the agency, the DAB held it was reasonable and permissible for CTP to count each time the retailer failed to comply with a tobacco regulation as a violation of the federal Food, Drug, and Cosmetic Act.
In addition, the board found that the law does not require a hearing before CTP issues a warning letter and that the administrative law judge lacked authority to issue a judicial warning letter.
The respondent has until Aug. 29 to appeal the latest ruling.
In February, Administrative Law Judge Lewis T. Booker Jr. ruled in favor of NACS, the Association for Convenience & Fuel Retailing and Orton Motor when they challenged CTP's practice of issuing several tobacco violations for a single transaction, as CSNews Online previously reported.
According to NACS, its members have been concerned that retailers have been cited for multiple violations of the Tobacco Control Act in a single transaction — for example, failing to check ID and making an underage sale — and/or a single inspection.
In addition, retailers raised concerns that they have not had the right to a hearing to challenge a violation the first time they receive one from the CTP.
Booker ruled in favor of Orton on both of these matters. 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. CTP had alleged they equaled two violations.
The judge also ruled that this was Orton's first violation. The company had received a warning letter for a 2013 violation; however, it was not given a chance to ask for a hearing, Booker ruled.