FDA can regulate e-cigarettes just like conventional smokes

Washington — The Food and Drug Administration can regulate e-cigarettes like conventional cigarettes, an appeals court said Tuesday, finding the products are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.”

The case before the U.S. Court of Appeals for the District of Columbia Circuit, brought by an e-cigarette manufacturer, was not about banning the sale of the devices and did not pose the question of whether e-cigarettes are more or less safe than traditional cigarettes. The issue for the court was whether the FDA has the authority to treat e-cigarettes as “tobacco products” and to subject the vaping products to the same set of rules and regulations.

The case is the first to be decided by a federal appeals court, among a set of lawsuits filed throughout the country.

The three-judge panel unanimously rejected arguments from the industry, calling the FDA’s decision “entirely rational and nonarbitrary” to require that before an e-cigarette can be marketed, its manufacturer must show that it is selling “consistent with public health.”

In a 48-page opinion, the judges also disagreed with the industry’s position that the ban on the distribution of free samples of tobacco products, including e-cigarettes, is unconstitutional and violates the First Amendment.

“Given the relatively unknown and potentially grave risks of e-cigarettes to all users, and their extraordinary allure to middle and high school students, we cannot agree,” according to the opinion, written by Judge Cornelia Pillard and joined by Judges Judith Rogers and David Sentelle.

Dennis Henigan, vice president of legal and regulatory affairs for the Campaign for Tobacco-Free Kids, called the ruling a “triumph for public health” and a “resounding judicial endorsement of the need for strong regulation of e-cigarettes.”