Judge Sides With Retailer in Challenge to FDA Tobacco Enforcement Practices

Orton Motor Company won a significant victory for tobacco retailers in recent weeks, successfully convincing a judge that the Food and Drug Administration's Center for Tobacco Products has exceeded its authority in its tobacco enforcement efforts.  The legal battle was waged alongside the National Association for Convenience Stores. 

Tobacco retailers have long objected to FDA's policy of citing them for multiple violations resulting from a single transaction or inspection. The law that they are enforcing clearly limits FDA's authority to impose violations to one-per-inspection. For example, FDA has accused retailers of two different violations in instances where a poorly trained clerk fails to check an underage customer's identification (violation #1) and sells that customer cigarettes (violation #2).
The Administrative Law Judge hearing the case ruled in favor of Orton Motor Company by finding that Orton's failure to check a customer's identification and sale of a tobacco product to an underage individual constituted one violation of the law rather than two (as FDA alleged). 
Additionally, tobacco retailers have been concerned that they do not have the right to request a hearing to challenge the first alleged tobacco sale violation.  The law calls for such violations to result in a warning letter (rather than a fine), so FDA has said there is no real "violation" to challenge. The fact is, however, that receiving a warning letter results in a retailer being more harshly punished for subsequent violations, so retailers should have the right to challenge accusations contained in a warning letter.  The judge agreed with retailers on this issue as well. 
NATSO has provided for its members a summary and compliance guide regarding FDA's tobacco enforcement efforts. 
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David Fialkov

David Fialkov is the Vice President of Government Relations, as well as the Legislative and Regulatory Counsel, at NATSO. In this capacity, Mr. Fialkov directs NATSO's legislative, regulatory, and legal strategy on a range of issues, including transportation, energy and fuels, labor, data security, and taxes. Mr. Fialkov also oversees NATSO's political engagement program, including individualized legal and political counsel to member companies. Prior to joining NATSO, Mr. Fialkov was the senior associate in the Government Affairs and Public Policy practice at the law firm of Steptoe and Johnson in Washington, D.C. At Steptoe, Mr. Fialkov advised clients on legislative, regulatory, and political issues, as well as legal concerns. His primary clients included trade associations representing the motor fuel wholesale and retail industries, including the National Association of Convenience Stores and the Society of Independent Gasoline Marketers of America. Mr. Fialkov's focus was not only on the motor fuels business, but also the litany of other issues that retailers confront, including labor matters, foodservice issues, healthcare and employment issues, tax matters and data security. Prior to joining Steptoe, Mr. Fialkov graduated with honors from George Washington University Law School. He received his B.S. Summa cum laude with highest honors from Clark University in Worcester, MA. He lives in Washington, D.C. with his wife Allison and daughter Lilah. More
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