T & M Food Mart LLC d/b/a T & M Food Mart, DAB TB10515 (2026)

ORDER GRANTING COMPLAINANT’S MOTION TO IMPOSE SANCTIONS 
AND INITIAL DECISION AND DEFAULT JUDGMENT

The Center for Tobacco Products (CTP) filed an Administrative Complaint (Complaint) against Respondent T & M Food Mart LLC d/b/a T & M Food Mart, alleging facts and legal authority sufficient to justify imposing a civil money penalty of $7,115.1  The Complaint alleges that Respondent impermissibly sold regulated tobacco products to persons younger than 21 years of age, and failed to verify that the purchasers were of sufficient age, thereby violating the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, Cigarettes and Smokeless Tobacco, 21 C.F.R. Part 1140.  CTP seeks a civil money penalty of $7,115.

During the course of these administrative proceedings, Respondent failed to comply with judicial orders and procedures governing this proceeding and failed to defend its action, which interfered with the speedy, orderly, or fair conduct of this proceeding.  21 C.F.R. 

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§ 17.35(a).  Accordingly, pursuant to 21 C.F.R. § 17.35(c)(3), I strike Respondent’s Answer and issue this decision of default judgment.

I. Procedural History

On August 7, 2025, CTP served the Complaint on Respondent located at 687 Arch Street, New Britain, Connecticut 06051, by United Parcel Service (UPS), pursuant to 21 C.F.R. §§ 17.5 and 17.7.  Civil Remedies Division (CRD) Docket (Dkt.) Entry (Numbers) Nos. 1 (Complaint), 1b (Proof of Service).  On November 6, 2025, CTP served the Amended Complaint on Respondent located at 687 Arch Street, New Britain, Connecticut 06051, by UPS, pursuant to 21 C.F.R. §§ 17.5 and 17.7.  CRD Dkt. Entry Nos. 10 (Amended Complaint), 10b (Amended Proof of Service).  On September 3, 2025, CRD received Respondent’s timely filed Answer.  CRD Dkt. Entry Nos. 3, 3a, 3b.  In its Answer, Respondent denied the allegations in the Complaint, offered defenses and stated that the penalty was too high.  Id. 

On September 5, 2025, I issued an Acknowledgment and Pre-Hearing Order (APHO) which established the procedures for presenting evidence and arguments in this case including a deadline of October 17, 2025, for the parties to serve requests for production of documents.  CRD Dkt. Entry No. 4.  My APHO directed the party receiving a request to provide the requested documents no later than 30 days after the request was made.  Id. ¶ 4.  Further, my APHO warned the parties that “I may impose sanctions including, but not limited to, dismissal of the complaint or answer, if a party fails to comply with any order (including this order), fails to prosecute or defend its case, or engages in misconduct that interferes with the speedy, orderly or fair conduct of this hearing.”  Id. ¶ 21; 21 C.F.R. § 17.35.

On October 6, 2025, CTP filed a Motion to Amend Complaint.  CRD Dkt. Entry Nos. 6, 6a.  On October 6, 2025, I issued an Order giving Respondent until October 21, 2025, to respond to CTP’s Motion.  CRD Dkt. Entry No. 7.  On October 10, 2025, CTP filed a Joint Status Report stating the parties intend to engage in further settlement discussions, and that Respondent authorized CTP to file the joint status report.  CRD Dkt. Entry No. 8 at 1. 

On October 28, 2025, as Respondent had not responded, I granted CTP’s Motion to Amend Complaint.  CRD Dkt. Entry No. 9.  On November 7, 2025, CTP filed the Amended Complaint documents.  CRD Dkt. Entry Nos. 10, 10a, 10b.  All references to the Complaint documents in this decision refer to the Amended Complaint documents.  The specific amended language in the Amended Complaint adds the most recent CMP action case numbers.  See id.

On November 20, 2025, CTP filed a Motion to Compel Discovery with two attachments, and an Unopposed Motion to Extend Deadlines.  CRD Dkt. Entry Nos. 11, 11a, 11b, 12.  

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CTP stated that it served its Request for Production of Documents (RFP) on Respondent on October 13, 2025,2 but CTP had not received a response from Respondent.  CRD Dkt. Entry No. 11 at 1-2.  On November 26, 2025, I issued an Order instructing Respondent to file a response to CTP’s Motion to Compel Discovery by December 5, 2025, and extended the parties’ pre-hearing exchange deadlines as requested.  CRD Dkt. Entry No. 14 at 1-2.  Respondent was warned “that if it fail[ed] to respond, I may grant CTP’s motion in its entirety.”  Id.

On December 10, 2025, as Respondent had not responded to CTP’s Motion to Compel Discovery as I instructed, I issued an order granting CTP’s Motion to Compel Discovery and gave Respondent until December 19, 2025, to comply with CTP’s RFP.  CRD Dkt. Entry No. 15 at 1.  Respondent was again warned that:

• Failure to do so may result in sanctions, including the issuance of an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a civil money penalty. 

Id.

On December 22, 2025, CTP filed Complainant’s Status Report and Motion to Impose Sanctions (Motion to Impose Sanctions).  CRD Dkt. Entry No. 16.  In its Motion to Impose Sanctions, CTP advised that Respondent did not produce responsive documents in compliance with the December 10, 2025, Order Granting its Motion to Compel Discovery.  Id. at 1-2.  CTP requested that I strike Respondent’s Answer and issue a default judgment imposing the $7,115 civil money penalty sought.  Id.  Also, on December 22, 2025, CTP filed a Motion to Stay Deadlines pending the resolution of its Motion to Impose Sanctions.  CRD Dkt. Entry No. 17. 

On December 29, 2025, I issued an Order giving Respondent until January 6, 2026, to respond to CTP’s Motion to Impose Sanctions and stayed all deadlines as requested.  CRD Dkt. Entry No. 18.  My December 29, 2025, Order also warned Respondent that if it failed to file a response, “I may grant CTP’s motion in its entirety.”  Id. at 1 (original emphasis omitted).  To date, Respondent has not responded to CTP’s Motion to Impose Sanctions.  Further, Respondent has not produced any documents in response to CTP’s discovery requests or otherwise complied with my Order Granting CTP’s Motion to Compel Discovery.

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II. Striking Respondent’s Answer

I may sanction a party for:

• (1)    Failing to comply with an order, subpoena, rule, or procedure governing the proceeding;
• (2)    Failing to prosecute or defend an action; or
• (3)    Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.

21 C.F.R. § 17.35(a).

Respondent failed to comply with the following orders and procedures governing this proceeding:

• Respondent failed to comply with paragraph 4 of my September 5, 2025, APHO, when it failed to respond to CTP’s Request for Production of Documents within 30 days; and
• Respondent failed to comply with my December 10, 2025, Order Granting Motion to Compel Discovery, requiring Respondent to comply with CTP’s Request for Production of Documents.
   

Respondent also failed to defend its action.  21 C.F.R. § 17.35(a)(2).  Specifically, Respondent failed to file a timely response to my November 26, 2025, Order, giving it an opportunity to respond to CTP’s Motion to Compel Discovery and failed to file a response to my December 29, 2025, Order, giving it an opportunity to file a response to CTP’s Motion to Impose Sanctions.  This leads me to conclude that Respondent has abandoned its defense of this case.

In the absence of any sufficient explanation from Respondent, I find no basis to excuse Respondent’s continued failure to comply with various orders in this administrative proceeding.  Despite explicit warnings that failure to comply with Orders could result in sanctions, Respondent did not comply with two Orders.  See CRD Dkt. Entry Nos. 4 ¶ 21; 15.  Accordingly, I find that Respondent failed to comply with judicial orders and procedures governing this proceeding, failed to defend its case, and, as a result, engaged in a pattern of misconduct that interfered with the speedy, orderly, and fair conduct of the hearing.  The harshness of the sanctions I impose must relate to the nature and severity of the misconduct or failure to comply.  21 C.F.R. § 17.35(b). 

I find that Respondent’s actions are sufficiently egregious to warrant striking its Answer and issuing a decision by default, without further proceedings.  21 C.F.R. § 17.35(b), (c)(3); see also KKNJ, Inc. d/b/a Tobacco Hut 12, DAB No. 2678 at 8 (2016) (concluding that “the ALJ [Administrative Law Judge] did not abuse her discretion in sanctioning 

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Respondent’s ongoing failure to comply with the ALJ’s directions by striking Respondent’s answer to the Complaint.”).  Therefore, CTP’s Motion to Impose Sanctions is GRANTED and Respondent’s Answer to the Complaint is hereby STRICKEN from the record.

III. Default Decision

Striking Respondent’s Answer leaves the Complaint unanswered.  Therefore, I am required to issue an initial decision by default, provided that the Complaint is sufficient to justify a penalty.  21 C.F.R. § 17.11(a).  Pursuant to 21 C.F.R. § 17.11(a), I am required to “assume the facts alleged in the [C]omplaint to be true” and, if those facts establish liability under the Act, issue a default judgment and impose a civil money penalty.

Accordingly, I must determine whether the allegations in the Complaint establish violations of the Act.

Specifically, CTP alleges the following facts in its Complaint:

• Respondent owns T & M Food Mart, located at 687 Arch Street, New Britain, Connecticut 06051.  
• Respondent’s establishment receives tobacco products in interstate commerce, including blu Polar Mint electronic nicotine delivery system (ENDS) products, and holds them for sale after shipment in interstate commerce.
• On June 9, 2023, CTP initiated a previous civil money penalty action, CRD Docket Number T-23-2498, FDA Docket Number FDA- 2023-H-2332, against Respondent for at least three3  violations of the Act.  CTP alleged those violations to have occurred at Respondent’s business establishment, Address listed in Complaint, on November 1, 2022, and March 8, 2023;  
• The previous action concluded when Respondent admitted the allegations contained in the Complaint issued by CTP and paid the agreed upon monetary penalty in settlement of that claim.  Further, “Respondent expressly waived its right to contest such violations in subsequent actions”;

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• An FDA-commissioned inspector conducted a subsequent inspection on March 4, 2025, at approximately 10:20 AM at Respondent’s business establishment. During this inspection, a person younger than 21 years of age was able to purchase a blu Polar Mint electronic nicotine delivery system (ENDS) product.  Additionally, Respondent’s staff failed to verify, by means of photographic identification containing a date of birth, that the purchaser was 21 years of age or older.

Amended Complaint ¶¶ 11-16.

These facts establish that Respondent is liable under the Act.  The Act prohibits misbranding of a tobacco product.  21 U.S.C. § 331(k).  A tobacco product is misbranded if distributed or offered for sale in any state in violation of regulations issued under section 906(d) of the Act.  21 U.S.C. § 387c(a)(7)(B); 21 C.F.R. § 1140.1(b).  The Secretary of the U.S. Department of Health and Human Services issued the regulations at 21 C.F.R. pt. 1140 under section 906(d) of the Act.  21 U.S.C. § 387a-1; see also 21 U.S.C. § 387f(d)(1); 75 Fed. Reg. 13,225, 13,229 (Mar. 19, 2010); 81 Fed. Reg. 28,974, 28,975-76 (May 10, 2016); see also 89 Fed. Reg. 70,483, 70,485 (Aug. 30, 2024).  Pursuant to section 906(d)(5) of the Act, no retailer may sell regulated tobacco products to any person younger than 21 years of age and retailers must verify, by means of photographic identification containing a purchaser’s date of birth, that no regulated tobacco product purchasers are younger than 21 years of age. 

Respondent T & M Food Mart LLC d/b/a T & M Food Mart having failed to file an answer and taking the alleged above facts as true, I find that Respondent violated the prohibition against selling regulated tobacco products to underage purchasers and failed to verify that the purchasers were 21 years of age or older.  These actions constitute violations of the Act, 21 U.S.C. § 301 et seq., and its implementing regulations, 21 C.F.R. Part 1140.  Accordingly, I conclude Respondent’s actions warrant a civil money penalty in the amount of $7,115 under 21 C.F.R. § 17.2.

ORDER

For these reasons, I enter Default Judgment in the amount of $7,115 against Respondent T & M Food Mart LLC d/b/a T & M Food Mart.  Pursuant to 21 C.F.R. § 17.11(b), this order becomes final and binding upon both parties after 30 days of the date of its issuance.