FDA Loses Second Court Battle over E-Cigarettes

The Food and Drug Administration (FDA) has lost another round in its battle to regulate electronic cigarettes as drug-delivery devices rather than as tobacco products, The Wall Street Journal reported Jan. 24.

E-cigarettes are battery-powered devices that heat cartridges of liquid containing nicotine to create a mist that users inhale. The FDA classifies them as drug-delivery devices like nicotine patches and gums – products that it must approve before they can be marketed.

In December, a three-judge appeals panel in the District of Columbia (D.C.) disagreed with the FDA’s position. The panel ruled that the FDA could only regulate e-cigarettes as drug delivery devices if purveyors made claims that their products would help people quit smoking or had other benefits. 

The FDA appealed the decision, but the U.S. Court of Appeals for the D.C. Circuit sided with the e-cigarette industry. The agency is now considering whether to take the case to the U.S. Supreme Court.

E-cigarette distributors and manufacturers argue that their products are alternatives to cigarettes and should not be subject to pre-approval, as smoking cessation products now are. If e-cigarettes were regulated as tobacco, it would be easier to put new devices on the market.

“We are very pleased with the court’s decision not to rehear the case,” said Gregory Garre, a lawyer for an e-cigarette distributor. “The fact that the full court unanimously declined the government’s rehearing request underscores the force of the panel’s original decision.”

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    April 26, 2011 at 1:42 PM

    It is surprising to me that they can win any at all.

    The government is supposedly so interested in improving our health, then why would they let the drug companies (via the FDA who has no interest in promoting health) restrict educating the public on better nutrition which can improve and reduce health problems?

    They want to ban Mc Donald’s but not let you know vitamins can help?
    Lets sue the FDA out of existance and regain freedom of speech. They let DDT laden fruits and veggies come in from Central America, they let lead and other toxins in from China, and they let drugs and medicine be the #1 cause of death, but they restrict scientifically validated education on safe nutritional supplements.

    They are terorists to the people. Its time for a budget cut for them.

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