The vaping lawsuits against the FDA are piling up and many more are expected. It remains to be seen if an overriding unified front will evolve but it is probably expected that additional companies and groups will join existing lawsuits in addition launching more of their own in courts all around the country. The FDA lawyers are going to have their hands full.
The first company that filed suit against the FDA deeming regulations was Nicopure, the maker of the famous Halo eCig vape juice and eVo eliquid lines. Nicopure’s suit is based on several factors including asserting the the FDA is vastly overstepping in how they are defining tobacco products. Nicopure also claims that the deeming has arbitrary elements and do not properly account for the burdens of businesses imposed by the pre-market approval process required.
Nicopure also says that the FDA deeming regulations of electronic cigarettes and eliquids represents an infringement of their First Amendment rights because electronic cigarette companies should have the right to present their products to smokers as an alternative to smoking.
The next company to file suit was filed by John Middleton Co. because they want to use the word “mild” in describing their products. The FDA claims that the word mild implies a modified risk while the company claims that mild is more of an indicator of flavor.
Also filing vaping lawsuits was Los Angeles eliquid manufacturer Lost Art E-Liquids. Lost Art claims the the FDA deeming regulations on vaping do not consider the effect of vaping on small businesses. The company claims that the FDA is grossly unaware of how their intended regulations will damage small businesses and that the FDA vastly overstates the benefits of regulation. Lost Art also claims infringement of First Amendment rights.
Vaping Has Defeated The FDA In Court In The Past
This harkens back to the early days of vaping. In 2009 the FDA, which has never had any interest in exploring the value of vaping, imposed an import ban on all vaping products. Most people who are involved in vaping now will not remember this as it seems like ancient history. In 2010, the FDA decided that electronic cigarettes constitute a drug delivery system and imposed a ban on imports. For a while, no electronic cigarettes were getting into the country. A group of US electronic cigarette brands led by NJoy got together and made a stand.
The case was heard by federal District Court Judge Richard J. Leon who knocked down the FDAs ban on vaping imports. The FDA appealed Judge Leon’s decision but on appeal the original decision was easily upheld 3 – 0.
With the failure to crush vaping by claiming that ecigarettes are a medical device, the FDA made its next focus to go after vaping by calling electronic cigarettes a tobacco product. That brings us to where we are today. And that is in a place where the FDA considers and electronic device, including heating coils and cotton, a tobacco product.
Will the FDAs history of overreach once again be thwarted? Only time will tell but we do know that the fight has only just begun.