Muhammed Market 5 Inc. d/b/a Edgmont Deli, DAB TB5494 (2022)

INITIAL DECISION AND DEFAULT JUDGMENT

The Center for Tobacco Products (CTP) began this matter by serving an administrative complaint on Respondent, Muhammed Market 5 Inc. d/b/a Edgmont Deli, at 2105 Edgmont Avenue, Chester, Pennsylvania 19013, and by filing a copy of the complaint with the Food and Drug Administration’s (FDA) Division of Dockets Management.  The complaint alleges that Edgmont Deli impermissibly sold regulated tobacco products to underage purchasers and failed to verify, by means of photo identification containing a date of birth, that purchasers were of age, thereby violating the Federal Food, Drug, and Cosmetic Act (Act), 21 U.S.C. § 301 et seq., and its implementing regulations, 21 C.F.R. pt. 1140.¹  CTP seeks a civil money penalty of $5,952, for at least five violations of the regulations within a 36-month period.

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

As provided for in 21 C.F.R. §§ 17.5 and 17.7, on March 15, 2022, CTP served the complaint on Respondent Edgmont Deli by United Parcel Service.  On April 1, 2022, Respondent filed a timely Answer to CTP’s complaint.  On April 5, 2022, I issued an Acknowledgment and Pre-Hearing Order (APHO) that set deadlines for the parties’ filings and exchanges, including a schedule for discovery.  I directed that a party receiving a discovery request must provide the requested documents within 30 days of the request.  APHO ¶ 4; see 21 C.F.R. § 17.23(a).  I warned that I may impose sanctions if a party failed to comply with any order, including the APHO.  APHO ¶ 21.

On May 20, 2022, CTP filed a Motion to Compel Discovery, asserting that Respondent did not respond to its discovery request as required by my APHO and regulations.  By Amended Order of June 6, 2022,²  I informed Respondent of its deadline to file a response and warned that if Respondent failed to respond, “I may grant CTP’s motion in its entirety.”  Amended Order at 1-2 (emphasis in original).  See also 21 C.F.R. § 17.32(c); APHO ¶ 20.  Respondent did not respond.

On June 28, 2022, I issued an Order to Compel Discovery in which I ordered Respondent to produce documents responsive to CTP’s discovery request by July 20, 2022.  Respondent was also ordered to notify CTP in writing if it did not have documents responsive to CTP’s request.  I warned Respondent that:

[F]ailure to comply may result in sanctions, which may include striking its filings and issuing an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a civil money penalty. 

Order to Compel Discovery at 1-2 (emphasis in original).

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On July 21, 2022, CTP filed a Status Report and Motion to Impose Sanctions (Motion to Impose Sanctions) stating that, as of its filing, Respondent had not produced documents in response to CTP’s request for production of documents in compliance with my Order to Compel Discovery.  By Order of July 22, 2022, I informed Respondent that it had until August 5, 2022, to file a response to CTP’s Motion to Impose Sanctions.  I warned Respondent that if it failed to file a response, “I may grant CTP’s Motion to Impose Sanctions in its entirety.”  Order at 1, July 22, 2022 (emphasis in original).  Respondent did not respond. 

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 21 C.F.R. § 17 .23(a) and paragraph 4 of my APHO, when Respondent failed to respond to CTP’s Request for Production of Documents within 30 days; and
• Respondent failed to comply with my Order to Compel Discovery when it failed to produce documents responsive to CTP’s Request for Production of Documents by July 20, 2022.

Respondent also failed to defend its action, despite my June 6, 2022 Amended Order and July 22, 2022 Order, informing Respondent that it may file a response and warning Respondent of the consequences if it failed to do so.

I find that Respondent failed to comply with orders and procedures governing this proceeding, failed to defend its case, and, as a result, interfered with the speedy, orderly, or fair conduct of this proceeding.  I conclude that Respondent’s conduct establishes a basis for sanctions pursuant to 21 C.F.R. § 17.35, and that sanctions are warranted.

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).  When a party fails to comply with a discovery order, including the discovery provisions under the regulations, I may

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strike any pleadings or submissions of the party failing to comply.  21 C.F.R. § 17.35(c)(3).  Here, Respondent failed to comply with a procedural rule (21 C.F.R. § 17.23(a)), and two of my orders (APHO ¶ 4; Order to Compel Discovery), under 21 C.F.R. § 17.35(a)(1), despite my explicit warnings that its failure could result in sanctions (APHO ¶ 21; Order to Compel Discovery at 1-2; Order at 1, July 22, 2022).  I specified that those sanctions “may include striking its filings and issuing an Initial Decision and Default Judgment finding Respondent liable for the violations listed in the Complaint and imposing a civil money penalty.”  Order to Compel Discovery at 1-2.  Respondent also failed to defend its actions, under 21 C.F.R. § 17.35(a)(2), despite my orders expressly reminding Respondent that it may file a response.  Amended Order at 1-2, June 6, 2022; Order at 1, July 22, 2022.  In fact, Respondent has not participated in this action in any meaningful fashion since filing its Answer.  Respondent’s repeated misconduct interfered with the speedy, orderly, or fair conduct of this proceeding, under 21 C.F.R. § 17.35(a)(3).

I find that imposing the sanction of striking Respondent’s Answer and issuing a decision by default, without further proceedings, reasonably relates to the severity and nature of Respondent’s misconduct.  21 C.F.R. § 17.35(b), (c)(3).  Accordingly, I strike Respondent’s Answer.  21 C.F.R. § 17.35(c)(3).

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 complaint 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:

• On November 6, 2019, CTP initiated a previous civil money penalty action, CRD Docket Number T-20-482, FDA Docket Number FDA-2019-H-5118, against Respondent for at least three violations³ of the Act.  CTP alleged those violations to have occurred at Respondent’s business establishment, 2105 Edgmont Avenue, Chester, Pennsylvania 19013, on December 15, 2018, and August 15, 2019;

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• 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”;
• An FDA-commissioned inspector conducted a subsequent inspection on December 1, 2021, at approximately 11:43 AM, at Respondent’s business establishment located at 2105 Edgmont Avenue, Chester, Pennsylvania 19013.  During this inspection, a person younger than 21 years of age was able to purchase a package of two Swisher Sweets BLK Cherry cigars.  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.

These facts establish Respondent Edgmont Deli’s liability under the Act.  The Act prohibits misbranding of a regulated tobacco product.  21 U.S.C. § 331(k).  A regulated tobacco product is misbranded if sold or distributed in violation of regulations issued under section 906(d) of the Act.  21 U.S.C. § 387f(d); see also 21 U.S.C. § 387c(a)(7)(B); 21 C.F.R. § 1140.1(b).  The Secretary 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 21 U.S.C. § 387f (note) (directing the Secretary to change references to persons younger than 18 to younger than 21, and to change the age verification requirements from individuals under the age of 26 to under the age of 30, in 21 C.F.R. subpart B of part 1140).  Under 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.  For violations prior to December 20, 2019, regulated tobacco products may not be sold to any person younger than 18 years of age, 21 C.F.R. § 1140.14(b)(1), 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 18 years of age, 21 C.F.R. § 1140.14(b)(2)(i).

Under 21 C.F.R. § 17.2, a $5,952 civil money penalty is permissible for five violations of the regulations found at 21 C.F.R. pt. 1140 within a 36-month period.

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Order

For these reasons, I enter default judgment in the amount of $5,952 against Respondent Muhammed Market 5 Inc. d/b/a Edgmont Deli.  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.

Endnotes

¹ On December 20, 2019, the Act was amended by the Further Consolidated Appropriations Act, 2020, Pub. L. No. 116–94, § 603(a)-(b), to raise the federal minimum age for sale of tobacco products to 21, and directed the Secretary of the U.S. Department of Health and Human Services (Secretary) to “update all references to persons younger than 18 years of age in subpart B of part 1140 of title 21, Code of Federal Regulations, and to update the relevant age verification requirements under such part 1140 to require age verification for individuals under the age of 30.”  21 U.S.C. § 387f (note).

² The June 6, 2022 Amended Order was identical to a prior Order issued June 1, 2022, except that I extended Respondent’s deadline to respond to CTP’s Motion to Compel Discovery from June 9, 2022, to June 16, 2022.

³ The complaint alleges two violations were committed on December 15, 2018, and two on August 15, 2019.  In accordance with customary practice, CTP counted the violations at the initial inspection as a single violation, and all subsequent violations as separate individual violations.  See Orton Motor, Inc. d/b/a Orton’s Bagley v. U.S. Dep’t of Health & Human Serv., 884 F.3d 1205 (D.C. Cir. 2018).