No. 1:09-cv-00771 (D.D.C. Apr 28, 2009)
No. 10-05032 (D.C. Cir. Feb 01, 2010)
The FDA can only regulate e-cigarettes as a tobacco product, unless they are being marketed as a cessation device.
On April 15, 2009, the FDA denied the import into the U.S. of electronic cigarettes and accessories made by two companies called Smoking Everywhere, Inc. and Sottera, Inc., doing business as NJOY. According to the FDA, these products appeared to be unapproved drug-device combination products that were intended to help treat the withdrawal symptoms of nicotine addiction.
Smoking Everywhere filed suit in the United States District Court for the District of Columbia, claiming that electronic cigarettes are not intended to help treat withdrawal symptoms of nicotine addiction but, rather, that they are for smoking enjoyment, similar to conventional cigarettes. Therefore, the companies asserted, the products could not be regulated by FDA as drug-device combination products, and FDA could not enforce its import ban. On May 15, 2009, the court allowed NJOY to join the case with Smoking Everywhere. Both companies sought a preliminary injunction, which would prohibit the FDA from blocking their imports until the case has been decided.
The District Court’s Decision
On January 14, 2010, the court granted the companies’ motion for a preliminary injunction... Judge Richard Leon reasoned that the companies were likely to succeed on the merits of their underlying claims because Congress did not intend tobacco products to be drugs merely because they deliver nicotine—if this were true, traditional cigarettes would also be a drug-device combination product. The court also noted that the intended use of an electronic cigarette is to encourage nicotine use, rather than prevent or mitigate it, so the notion that the products were therapeutic in nature was also misplaced. In addition, the court found that the companies also stood to suffer irreparable harm if FDA continued to export or seize and destroy their products, and any harm to the public interest was relatively minimal. FDA subsequently filed an appeal of the ruling granting the preliminary injunction.
The Court of Appeals’ Decision
The appeal of the district court’s preliminary injunction ruling was filed by FDA on February 1, 2010. On December 7, 2010, Senior Circuit Judge Stephen Williams affirmed the District Court’s ruling that electronic cigarettes can be regulated solely as tobacco products, and not as drug-device combination products unless they are being marketed with a therapeutic purpose (cessation). Citing the U.S. Supreme Court’s decision in FDA v. Brown & Williamson, the court noted that the Food, Drug, and Cosmetic Act (“FDCA”) does not allow FDA to regulate tobacco products as “customarily marketed” because they are not drugs, devices, or combination products. Further, the court noted that the passage of the Tobacco Control Act provided FDA with explicit authority to regulate tobacco products, which it broadly defines as “any product made or derived from tobacco that is intended for human consumption,” other than drugs, devices, and combination products. Therefore, two distinct regulatory regimes emerge—the regulation of all tobacco products as “customarily used” under the Tobacco Control Act, and the regulation of products marketed with specific claims of therapeutic effect under the FDCA. In other words, because the products at issue made no claims of therapeutic effect, FDA’s sole source of regulatory authority existed under the Tobacco Control Act, and the injunction issued by the lower court was warranted.
The FDA did not request review of the decision by the U.S. Supreme Court and instead issued a statement of its intent to regulate e-cigarettes as tobacco products.
1Smoking Everywhere, Inc. v. U.S. Food and Drug Admin., Docket No.1: 09-cv-00771 (D.D.C. Apr. 28, 2009), Doc. No. 54, Memorandum Opinion, at p. 15.
2Id. at p. 21-22.
3Id. at p. 27-31.
4Sottera, Inc. v. U.S. Food and Drug Admin., 627 F.3d 891 (D.C. Cir. 2011).
5Id. at 894 citing Brown & Williamson, 529 U.S. 120 (2000).
6Id. at 894.
7Id. at 898.
8U.S. Food and Drug Admin., Stakeholder Letter: Regulation of E-Cigarettes and Other Tobacco Products (April 25, 2011), http://www.fda.gov/newsevents/publichealthfocus/ucm252360.htm.