E-cigarette Future Sits in Judge’s Hands


Lawyers for electronic cigarette distributors asked a federal judge to lift the ban on electronic cigarettes Monday, stating that their clients do not market their products as a way to quit smoking and that the FDA has no legitimate reason to ban their entry into the country, The National Law Journal reported.


At the U.S. District Court for the District of Columbia, attorneys for Smoking Everywhere and NJoy asked Judge Richard Leon for a preliminary injunction that would lift the FDA’s embargo on their products. The companies sued the FDA in April, asserting that the FDA had wrongly classified e-cigarettes as unapproved drug devices, and banned imports of them into the U.S.


At Monday’s hearing, the judge asked lawyers to explain how the new Family Smoking Prevention and Tobacco Control Act, which gives the FDA power over tobacco regulation, might affect the case.


Thompson Hine Partner Kip Schwartz, representing Smoking Everywhere, said the act created a new regulatory category for tobacco-based products. He added e-cigarettes couldn’t be regulated as drug devices because the companies did not claim the product improved users’ health, or affected the body any differently than smoking a normal cigarette.


“We don’t want people weaned off the e-cigarette,” Schwartz said. “We want them smoking it as long as they smoked regular cigarettes.”


Schwartz added that regulations for a drug device would be much more restrictive than for a tobacco-based product. He said the idea of regulating e-cigarettes differently from traditional tobacco products “didn’t pass the straight face test” given that they do little but deliver nicotine, The National Law Journal reported.


Justice Department Attorney Drake Cutini, representing the FDA, said the e-cigarette companies were marketing their products using health claims, including customer testimonials that the devices helped them quit smoking.


“It’s not just specific claims,” Cutini said. “It’s the entire circumstances of marketing.”




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