FDA Can’t Regulate, Ban Import E-Cigarettes

E-cigarettes are battery-powered tubes that deliver tobacco as a vapor which, their advertisers claim, makes for a healthier and smoke free smoke.

The device has been the center of a suit between the manufacturer, Njoy, and the Federal Drug Administration as to whether the electronic smoking devices are actually a drug or medical device rather than a tobacco product. Classifying e-cigarettes as a drug, as the FDA argued, would make it fall under its regulation and the agency would have the ability to regulate and even ban the product.

But the FDA's argument for regulation has failed, again.

A recent opinion handed down by the Washington, D.C. federal appeals court held electronic cigarettes to be a tobacco product, falling under the regulation of the Tobacco Act. Translation: the FDA cannot regulate or ban the importation of the popular tobacco devices.

One rationale behind the decision was that e-cigarettes are not marketed as an item to help quit smoking, if that were the case then the FDA may gain control. The FDA will still have a role in overseeing the marketing of e-cigarettes, but like all other tobacco products, electronic cigarettes will come under the supervision of federal regulators. The control of electronic cigarettes will be similar to that of regular cigarettes as long as e-cigarettes continue to be marketed as a smoking device.

"This is a huge victory for public health and civil justice. It's time for the FDA officials to come to their senses by reclassifying and promulgating reasonable regulations for tobacco products for e-cigarettes as tobacco products," The New York Times quotes Bill Godshall, founder of SmokeFree Pennsylvania. The FDA is looking into the next steps to gain control over the products they feel are dangerous.

Related Resources:

• Medical News: E-cigarettes Not Drugs or Devices (Medical Pages)
• Tobacco (FindLaw's LawBrain)
• Courts Lift FDA's Electronic Cigarette Ban (FindLaw's Injured)