FDA Sampling juice at B&M's

[zeus287]

Before I get flamed for not using the search, I have been searching (both on google and here), but am hoping someone can further answer a question I still have after reading up on the new regs over the last few days. I work at a vape shop in NC, and from what I understand, though free juice sampling is no longer aloud by the FDA, so customers must pay a small fee first. My manager is under the impression that in order for us to let customers sample juice (we don't mix any of our own juice), we have to file for a PMTA. From what I understand, this does not apply to sampling juice, but to manufacturers of juice or hardware. Can someone more in the know help clear this up for us? Thanks in advance for the help!

 

[DC2]

Before I get flamed for not using the search, I have been searching (both on google and here), but am hoping someone can further answer a question I still have after reading up on the new regs over the last few days. I work at a vape shop in NC, and from what I understand, though free juice sampling is no longer aloud by the FDA, so customers must pay a small fee first. My manager is under the impression that in order for us to let customers sample juice (we don't mix any of our own juice), we have to file for a PMTA. From what I understand, this does not apply to sampling juice, but to manufacturers of juice or hardware. Can someone more in the know help clear this up for us? Thanks in advance for the help!

Hmmmm....

That's a question that never occurred to me.
You are not supposed to rebottle or relabel something or it becomes a new product.

Maybe you could ask the FDA.
They are there to help.

 

[Lessifer]

The general consensus seems to be that you can charge a fee, more than a few cents but it doesn't have to be a lot, and they can sample in the store, but the FDA has not given full guidance on this. Most stores seem to be charging a dollar for sample for that visit.

ETA: the sample fee has to be something entered into your POS system.
2nd ETA: I've actually submitted this question to the FDA, on July 27th, and I'm still waiting for a response.

 

[Bill Godshall]

My manager is under the impression that in order for us to let customers sample juice (we don't mix any of our own juice), we have to file for a PMTA.

Wrong, FDA just banned all free sampling of vapor products. Also, only manufacturers can file PMTAs.

 

[zeus287]

Wrong, FDA just banned all free sampling of vapor products. Also, only manufacturers can file PMTAs.

I should've clarified. She was still under the impression that we had to charge to sample juice, she just wasn't sure that, since a bottle has to be opened to be sampled, if that would go into the manufacturing rules of the regs. Basically, since juice being repackaged and sold requires a PMTA, would charging for sampling technically be considered selling repackaged product. I've emailed the FDA, just waiting on a reply.

 

[VapNMirrors]

There's a vape chain in MD/VA/DC area that looks to be getting around this by charging $1 for a lifetime membership to their private club. Club members can sample and they no longer offer samples to the public. Whala!

 

[Ed_C]

Some vape stores are also charging a buck to sample for the day and then donating those earnings to vaping advocacy. This is a great idea on my opinion.

 

[VapNMirrors]

Some vape stores are also charging a buck to sample for the day and then donating those earnings to vaping advocacy. This is a great idea on my opinion.

While nice that turns them into manufacturers, therein the rub. The private club shtick completely shirks the law

 

[skoony]

There's a vape chain in MD/VA/DC area that looks to be getting around this by charging $1 for a lifetime membership to their private club. Club members can sample and they no longer offer samples to the public. Whala!

This will become problematic when any taxes on e-juice are passed and have to be accounted
for. Any sales taxes may already be subject to payed at the retail level of juice consumed.
In Minnesota they actually do not give away free cigarettes anymore but,promotional coupons
that allow you to purchase at a substantially discounted price. The purchaser pays any sales
tax,the promoter pays any additional tobacco related tax.Considering that e-liquid is now just
another tobacco product do not be surprised if this doesn't last long.

Some vape stores are also charging a buck to sample for the day and then donating those earnings to vaping advocacy. This is a great idea on my opinion.

This will ultimately be construed as a round about way of making reduced harm claims
and be shut down. Also see my remark above concerning taxes.

For the very few states that have regulated e-cigarettes as non-tobacco products by
law Both these approaches might gain some legs.

Regards
Mike

 

[VapNMirrors]

In terms of taxes, the income would fall under club fees collected. The juice costs would be club operational expenses. it's a loophole for now for at least states around DC. Will it last? Perhaps a while, perhaps longer.

 

[AzPlumber]

What if you charge $1 to sample with a $1 discount if you purchase or $1 refund if you don't purchase because you're not happy with the products.

 

[skoony]

In terms of taxes, the income would fall under club fees collected. The juice costs would be club operational expenses. it's a loophole for now for at least states around DC. Will it last? Perhaps a while, perhaps longer.

It would probably depend on how your state collects it tobacco tax.
most states require any taxes to reflect the actual retail value of the
promotion. Unless the Fed's come up with there own angle this should
be a states issue.
My gut feeling is the FDA says no more free samples of e-juice so,no
more free e-juice. Any juice consumed under any minimum charge scheme
better reflect the retail cost of the juice consumed. The next few months
should let us know which way the FDA is going to swing on this.
Regards
Mike

 

[Lessifer]

What if you charge $1 to sample with a $1 discount if you purchase or $1 refund if you don't purchase because you're not happy with the products.

I believe the refund, and probably even the direct discount, would constitute a free product. That's just a guess though. Perhaps a $1 fee that comes with a $1 off coupon towards your next purchase?

 

[AzPlumber]

I believe the refund, and probably even the direct discount, would constitute a free product. That's just a guess though. Perhaps a $1 fee that comes with a $1 off coupon towards your next purchase?

I guess my reasoning is the FDA can't regulate how you discount your product nor can they make you pay for something you're not happy with.

 

[Lessifer]

I guess my reasoning is the FDA can't regulate how you discount your product nor can they make you pay for something you're not happy with.

The FDA seems to think it can do a lot of things.

In any event, I've been poking the FDA Bot on twitter about my question, they asked me for my name so they could find my email, then they said they found it and will respond as quickly as they are able. I plan to make their response as public as I can

 

[Ed_C]

While nice that turns them into manufacturers, therein the rub. The private club shtick completely shirks the law

Selling juice samples doesn't make you a manufacturer, anymore than a restaurant pouring a Coke makes the restaurant a producer of Coke.

There's also nothing, as far as I'm concerned, implied with donating to advocacy that could be inferred as making reduced harm claims. It's a business and the owner wants to stay in business. I think that would be a hard sell, even for the FDA.

 

[Ed_C]

....and as for taxes, I imagine the tax would need to be deducted from the sampling charge and sent to Uncle Sam, but at least most of each dollar could be donated.

 

[skoony]

I guess my reasoning is the FDA can't regulate how you discount your product nor can they make you pay for something you're not happy with.

The Fed's haven't really tried price controls since the 70's I believe.
However states have used them to protect their tax take. Most notably
with gas and cigarettes. In Minnesota you can't sell gas at less than cost.
Cigarettes are controlled also however I do not know the specifics.
Regards
Mike

 

[SeniorBoy]

The general consensus seems to be that you can charge a fee, more than a few cents but it doesn't have to be a lot, and they can sample in the store, but the FDA has not given full guidance on this. Most stores seem to be charging a dollar for sample for that visit. ETA: the sample fee has to be something entered into your POS system.

Danka! YES! It must be traceable and depending on your sales system, a dedicated SKEW for the sample charge which should make this retail sale taxable income AND, if the FDA shows up at your front door you can pull up the records and prove you don't offer free samples. Also the procedure must be set in stone. You want to sample. Fine, Pay first and ring it up. Ditto, no need for a PMTA. I have no idea what your state will due.

 

[SeniorBoy]

VAPREV is a large player and I just received this: