Abu Salman d/b/a Quick Snacks, DAB TB7777 (2024)

INITIAL DECISION

I sustain the determination of the Center for Tobacco Products (CTP) of the United States Food and Drug Administration (FDA) to impose a civil money penalty of $6,397 against Respondent, Abu Salman d/b/a Quick Snacks. The evidence establishes that Respondent committed five violations of law and implementing regulations in a 36-month period by unlawfully selling tobacco products and/or failing to check the identification of underage individuals.

I. Background

Respondent requested a hearing to challenge CTP’s determination. I held a hearing on September 14, 2023, at which I afforded Respondent the opportunity to cross-examine David Kvam, an inspector working on behalf of CTP. A transcript (Tr.) was made of the hearing. I received into evidence exhibits from CTP that are identified as CTP Ex. 1 – CTP Ex. 13, and from Respondent that are identified as Doc 1 – Doc 5.

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Both CTP and Respondent filed pre-hearing briefs. I afforded each party the option of filing a post-hearing brief. CTP filed a post-hearing brief, Respondent did not.

II. Issues, Findings of Fact and Conclusions of Law

A. Issues

The issues are whether Respondent committed at least five violations of governing law and regulations within a 36-month period and whether the civil money penalty that CTP determined to impose is authorized by law and reasonable.

B. Findings of Fact and Conclusions of Law

This is a case that is brought pursuant to Section 906(d)(5) of the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 387f(d)(5), and implementing regulations at 21 C.F.R. Part 1140. The Act and regulations prohibit the sale of tobacco products to individuals who are under the age of 21 and make unlawful the failure to verify the age of a person purchasing tobacco products by photographic identification containing the bearer’s date of birth. 21 U.S.C. § 387f(d)(5); 21 C.F.R. § 1140.14(a)(2)(i).1

A retailer who unlawfully sells tobacco products causes its tobacco products to become misbranded. 21 U.S.C. § 387c(a)(7)(B). The Act prohibits committing an act that causes tobacco products to be misbranded while they are held for sale after shipment in interstate commerce. 21 U.S.C. § 331(k).

1. Noncompliance

There is no dispute that Respondent sells tobacco products that are in interstate commerce. What is in dispute are CTP’s allegations that Respondent unlawfully sold tobacco products on October 20, 2022, and that Respondent unlawfully failed to verify the age of an underage purchaser of tobacco products on that date.

I find CTP’s allegations to be supported by the weight of the evidence.

David Kvam is an FDA-commissioned officer with the State of Minnesota. CTP Ex. 4 at 1. His duties include conducting undercover buy inspections of retailers of tobacco products. Id. at 1-2. Mr. Kvam testified at the September 14, 2023, hearing. Respondent did not directly challenge any of Mr. Kvam’s assertions.

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Mr. Kvam credibly testified that, on October 20, 2022, he accompanied an undercover purchaser – an individual under the age of 21 – to Respondent’s business establishment located at 10 Southdale Center, Edina, Minnesota 55435. CTP Ex. 4 at 2. He confirmed that the undercover purchaser was under the age of 21, did not possess any tobacco products and did not possess photographic identification. Id. He observed the undercover purchaser enter Respondent’s place of business – a small store in a shopping mall – at about 3:56 pm and watched from an unobstructed vantage point outside of the establishment, as the undercover purchaser bought a package of cigarettes without presenting identification. The undercover purchaser then exited Respondent’s store, accompanied Mr. Kvam to his vehicle, and handed him a package of Marlboro Special Select cigarettes. Id. at 3.

CTP offered evidence that corroborates Mr. Kvam’s testimony, including his contemporaneous report and photographs of the package of cigarettes that were bought by the undercover purchaser. CTP Ex. 6 at 1-2; CTP Ex. 8; CTP Ex. 9.

I do not find that Respondent offered evidence that either directly rebuts Mr. Kvam’s testimony or undermines that testimony’s credibility.

Respondent argues that transaction reports of sales made by his business on October 20, 2022, do not show any sale of Marlboro Special Select cigarettes at 3:56 pm on that date or shortly before or after that time. See Doc 1 – Doc 4. From this, Respondent would have me infer that no unlawful transaction occurred on that date.

However, there are problems with Respondent’s evidence that render it less than probative.

The principal problem is that Respondent did not prove that the transaction reports document all the sales that his establishment made during the relevant time period on October 20, 2022. Most significantly, the transaction reports do not document cash sales. The transaction reports are of credit card sales. However, as Mr. Kvam credibly testified, the undercover purchaser used cash to buy cigarettes from Respondent. Tr. at 4.

Additionally, Respondent did not offer persuasive evidence that the transaction reports are for the business location that is the subject of this case. Respondent does business as “Quick Snacks.” However, the transaction reports are for a business named “Quick Snacks 2,” located at 2075 Southdale Center, Edina Minnesota 55435. Doc 1 – Doc 4. It is unclear whether Respondent does business from a second location. However, it is Respondent’s burden to provide evidence that records the sales made at the location that is the subject of this case. At the least, the evidence that he offered is ambiguous.

Third, there is a time-related discrepancy in the transaction reports, a discrepancy that impeaches the credibility of these reports. See Doc 1; Doc 3. A credit card receipt for

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Transaction #100224216 shows the sale as having been made at 21:00:17. However, the transaction report for the same transaction shows the sale as having been made at 16:00:17 on October 20, 2022. Id. It was Respondent’s burden to explain this discrepancy. It failed to do so.

2. Remedy

CTP predicated its remedy determination on at least five violations of the Act and regulations committed by Respondent during a 36-month period. As I have explained, the weight of the evidence supports allegations of two violations (unlawful sale of a tobacco product to an underage purchaser and failure to verify the purchaser’s age by photo identification prior to the sale) committed on October 20, 2022. Respondent committed three prior violations within 36 months that are administratively final and not subject to challenge.

On May 12, 2022, CTP filed an administrative complaint alleging that on January 31, 2022, Respondent unlawfully sold a tobacco product to an underage purchaser and failed to verify the purchaser’s age by photographic identification. CTP alleged additionally that on August 11, 2021, Respondent also sold a tobacco product to an underage purchaser and failed to verify the purchaser’s age by photographic identification. CTP determined to impose a civil money penalty based on these instances of noncompliance.2 CTP Ex. 1 at 4-5.

Respondent admitted to these violations and waived its right to contest them in the future. CTP Ex. 2. Consequently, these violations are established as a matter of law. The three admitted violations plus the two additional violations that Respondent committed on October 20, 2022, comprise a total of five violations, all committed within a 36-month period.

The FDA (and CTP) may impose civil money penalties against any individual or entity that violates the Act’s requirements governing sale of tobacco products. 21 U.S.C. § 333(f)(9). Civil money penalty amounts are governed by regulations at 45 C.F.R. Part 102. The current maximum penalty for committing five violations in a 36-month period is $6,397. 45 C.F.R. § 102.3, the amount that CTP determined to impose in this case.

I have considered the circumstances of Respondent’s noncompliance. They amply justify the penalty that CTP determined to impose.

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To begin with, I take notice that tobacco products are highly addictive. The costs of tobacco addiction are both personal and social: personal in that the addicted individual may suffer both from devastating health issues, and social, in that the collective consequence of tobacco-related illness is a substantial burden on our health care system and on related services.

Selling tobacco products to underage individuals – individuals who may lack the judgment skills of more mature persons – exposes them to the prospect of lifelong addiction and all the hardship and costs that come with that. Any sale of a tobacco product to a minor is thus a serious violation of law.

Moreover, Respondent is a repeat offender. There is no reason in this case to mitigate the penalty amount given that Respondent has been caught making unlawful sales of tobacco products on multiple occasions. The fact that Respondent has committed multiple and repeated violations evidences a high degree of culpability. A substantial civil money penalty is warranted in this case to deter Respondent from committing additional violations.

Finally, I note that Respondent has not offered any evidence to show that he lacks the wherewithal to pay the penalty amount.