Appeals Court Upholds FDA's Authority to Regulate Electronic Cigarettes

WASHINGTON, D.C. — The United States Court of Appeals – D.C. Circuit ruled against a lawsuit challenging the Food and Drug Administration's regulatory authority over electronic cigarettes.  

The court's decision on Dec. 10 in response to a lawsuit brought by Nicopure Labs and the Right to Be Smoke-Free Coalition, an e-cigarette industry group. The 2016 lawsuit alleged the FDA's deeming rule would subject electronic cigarettes and other vaping products to more onerous restrictions than combustible cigarettes under the 2009 Family Smoking Prevention and Tobacco Control Act, as Convenience Store News previously reported.

In its court filing, Nicopure Labs said the FDA's rulemaking process violated the Administrative Procedure Act, and that the deeming rule violates the First Amendment to the United States Constitution.

However, the unanimous three-judge panel said that the FDA's application to e-cigarettes of rules governing tobacco marketing was rational because the new products "are indisputably highly addictive and pose health risks, especially to youth, that are not well understood," according to Bloomberg.

"The First Amendment does not bar the FDA from preventing the sale of e-cigarettes as safer than existing tobacco products until their manufacturers have shown that they actually are safer as claimed," U.S. Circuit Judge Cornelia Pillard wrote for the court.

The Family Smoking Prevention and Tobacco Control Act of 2009 gives the FDA the authority to regulate tobacco products. Its first actions centered around cigarettes — including banning flavored cigarettes.

In May 2016, the FDA released its long-awaited deeming rule extending its authority to all tobacco products, including e-cigarettes and cigars. The final rule came two years after the agency first released its proposed deeming rule. The authority also extends to hookah tobacco and pipe tobacco.

The rule went into effect in August 2016.