Yesterday marked another victory for e-cigarette manufacturer NJOY after a federal appellate court in Washington, D.C. unanimously upheld a lower court’s previous injunction against the FDA’s attempt to regulate the products as drugs or medical devices. The appeals court said that the e-cigarettes should instead be regulated under the less stringent 2009 Family Smoking Prevention and Tobacco Control Act, which allows the FDA to control tobacco products’ packaging and marketing.
Concerned that e-cigarette makers were marketing their products as smoking cessation aids, the FDA tried to ban them as unapproved drug delivery devices. But according to yesterday’s court ruling, e-cigarettes are marketed for the pleasure of the product, not the therapeutic benefit of a drug or medical device.
“As long as e-cigarette makers mind their p’s and q’s and don’t try and tell smokers the truth — that e-cigarettes would be a major benefit to the 45 million addicted smokers who wish to quit, but can’t — they’ll be regulated as tobacco products and will hopefully be marketed without too much government interference,” says ACSH’s Dr. Gilbert Ross. “It’s a shame that the new law specifically prohibits e-cigarette makers — and smokeless tobacco marketers — from truthfully informing smokers about the huge difference in toxicity between cigarettes and non-combustion nicotine delivery products.”
Since companies like NJOY can’t market their product as a safer alternative to regular cigarettes, ACSH’s Dr. Elizabeth Whelan says that “it’s up to responsible public health organizations like ACSH to get that message out to the people.”