E-Cigarettes Win Court Victory

But state of New York considering ban

Published in CSP Daily News

WASHINGTON -- The electronic cigarette industry scored another victory against the U.S. Food & Drug Administration (FDA) in federal court Monday, potentially setting the stage for the battery-powered devices to be regulated like conventional tobacco products, reported The Wall Street Journal. The U.S. Court of Appeals for the District of Columbia Circuit rejected the FDA's request to have the entire court review a December decision by a three-judge panel that went against the agency.

The FDA, which contends that the products should be regulated as drug devices, [image-nocss] now has the option of asking the U.S. Supreme Court to take up the case. An FDA spokesperson told the Journal that the agency is evaluating the latest court ruling "and considering its legal and regulatory options."

On December 7, a three-judge appeals panel ruled that e-cigarettes should be regulated as tobacco products by the FDA unless marketers make claims that the devices help smokers quit or provide other remedies.

The agency has argued that e-cigarettes are drug or medical devices that require pre-approval from the FDA, much like nicotine gums, patches or sprays. The agency began intercepting shipments of e-cigarettes from China in 2008, prompting a lawsuit from the industry, said the report.

The agency has regulated nicotine-replacement products for years and gained authority to regulate the production and marketing of cigarettes and other tobacco products for the first time in 2009. If the government decided to regulate e-cigarettes as tobacco products, manufacturers would still face significant regulations, but it would be easier to bring the devices into the market, the report added.

The appeals court Monday also refused to reinstate a stay of a preliminary injunction that was granted to the e-cigarette distributors by a U.S. district-court judge in January 2010, the newspaper said. The injunction blocked the agency from intercepting their product shipments from China.

Meanwhile, New York lawmakers are considering what could become the first state ban on electronic cigarettes, reported the Associated Press.

"I got interested in this because I saw all these ads for e-cigarettes, so I did some research," Assemblywoman Linda Rosenthal (D) told the news agency. "I found what is in the e-cigarettes is a mystery."

She wants to ban e-cigarettes in New York until they are more thoroughly investigated and regulated. The bill could be voted out of the Assembly Health Committee as early as Tuesday, said Rosenthal.

Her bill was approved in the assembly last year but stalled in the Senate, which was then controlled by Democrats. Senate Health Committee Chairman Kemp Hannon (R) said the bill likely will be considered by his committee and a hearing may be held, but it is too early to predict what will happen with the proposal.