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The draft guidance documents may be applicable to NACS members who engage in tobacco sales, including sales of e-cigarettes and other recently deemed tobacco products. As a reminder, in August 2016, the FDAs final rule extending the agencys regulatory authority to products such as e-cigarettes, cigars, hookah (waterpipe) and pipe tobacco, certain dissolvables, and nicotine gels, went into effect. NACS counsel has prepared a memo for NACS members summarizing the major provisions of the rule for tobacco retailers. Prohibition on Free Samples Under FDAs tobacco regulations, retailers are prohibited from giving out free samples of any tobacco products, including e-cigarettes, vape pens, other electronic nicotine delivery systems (ENDS), cigars, hookah tobacco, pipe tobacco, nicotine gels, dissolvable tobacco, or components or parts of these items. This prohibition applies even to those components or parts that are not made from tobacco. FDAs draft guidance states that, in general, retailers may only distribute tobacco products to consumers through sales transactions and only in exchange for money (cannot be provided solely in exchange for a consumers contact information or signing up for a mailing list). However, the agency does note that certain practices may not violate the prohibition on free samples, and thus would be permissible under certain conditions. Those scenarios, with various restrictions noted in the draft guidance, include certain coupons and discounts, membership and reward programs, and contests and games of choice. The draft guidance document contains more specific information regarding permitted and prohibited activities. With best 10 vapor cigarette these potential exceptions, the FDA notes that it intends to consider the specific facts of potential violations on a case-by-case basis to determine whether a certain practice would violate the ban on free samples.
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