Appeals Court Rejects FDA Bid to Regulate E-Cigarettes

WASHINGTON -- The Food and Drug Administration was dealt another blow in its efforts to regulate electronic cigarettes by the U.S. District Court of Appeals for the District of Columbia. In the latest setback, the court rejected the FDA’s bid to have the full court review a three-judge panel’s earlier decision rejecting the agency’s effort to regulate electronic cigarettes as drug devices.

The FDA now has the option of asking the U.S. Supreme Court to take up the issue. An agency spokesman said on Jan. 24 that it is evaluating the latest court ruling "and considering its legal and regulatory options," according to The Wall Street Journal.

The FDA contends that e-cigarettes are drug or medical devices that require preapproval from the agency -- similar to nicotine gums, patches or sprays. Two years ago the FDA began intercepting e-cigarette shipments from China, sparking a lawsuit by the industry. In January 2010 a district judge granted a preliminary injunction to e-cigarette distributors who sued the FDA; the appellate panel upheld this ruling, CSNews Online previously reported.

The news of the court’s rejection comes as New York State lawmakers are eyeing a bill that would ban e-cigarettes in the state until there is some action by the FDA. According to the Associated Press, New York State Assemblywoman Lind Rosenthal (D-Manhattan) introduced the bill and it is slated to be voted on by the Assembly Health Committee as early as today, Jan. 25.

Rosenthal’s bill was approved by the Assembly in 2010 but it stalled in the Senate, which was then controlled by Democrats. However, Senate Health Committee Chairman Kemp Hannon, a Republican, said the bill would likely be considered by his committee, the Associated Press reported.

The e-cigarette industry is now keeping a close eye on what happens in New York, the news outlet added. "They kind of snuck up on us," said Elaine Keller of Springfield, Va., vice president of the Consumer Advocated for Smoke-Free Alternatives Association.

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