US FDA has power to regulate vapor products, will stiff face opposition to any flavor ban

The U.S. Court of Appeals for the District of Columbia in Washington has upheld the Food and Drug Administration’s (FDA) regulatory power over vapor products, report Bloomberg and Reuters.

The agency’s authority had been challenged by e-cigarette maker Nicopure Labs and the Right to be Smoke Free Coalition, who argued that the FDA violated the federal Tobacco Control Act by failing to provide an easier path to market for their products and their First Amendment rights by banning the distribution of free samples.

A three-judge panel unanimously said on Tuesday that the FDA’s application to e-cigarettes of rules governing tobacco marketing makes sense because the new products “are indisputably highly addictive and pose health risks, especially to youth, that are not well understood.”

“The First Amendment does not bar the FDA from preventing the sale of e-cigarettes as safer than existing tobacco products until their manufacturers have shown that they actually are safer as claimed,” U.S. Circuit Judge Cornelia Pillard wrote for the court.

While the FDA prevailed in the case, the agency still faces stiff resistance from trade groups and conservative activists in anticipation of its e-cigarette flavor restrictions.

Opponents say flavor restrictions will stifle a budding e-cigarette industry while killing thousands of jobs and small businesses.

Tuesday’s appellate ruling affirmed a 2017 decision by U.S. District Judge Amy Berman Jackson in Washington.