FDA Revises Import Alert 98-07 Rules, Bringing May Enforcement Priorities Into Unauthorized ENDS Detentions

News
Sep.28
FDA Revises Import Alert 98-07 Rules, Bringing May Enforcement Priorities Into Unauthorized ENDS Detentions
The U.S. Food and Drug Administration has revised the rules under Import Alert 98-07 to incorporate its May 2026 enforcement-priority policy for certain electronic nicotine delivery systems marketed without premarket authorization. The alert continues to allow detention without physical examination, or DWPE, for ENDS lacking required marketing authorization, while directing field divisions to apply the May risk-based framework. When necessary, detention or refusal decisions must also undergo review by the FDA's Center for Tobacco Products. Products including PACHA and Vuse Pro have already emerged as industry examples of the May policy, although enforcement discretion does not constitute FDA marketing authorization.

Key Points

  • FDA revised Import Alert 98-07 to incorporate its May risk-based enforcement policy for certain unauthorized ENDS into import detention procedures.
  • DWPE remains in place, while some detention or refusal decisions require review by the Center for Tobacco Products.
  • The May policy does not apply automatically to every product with a pending PMTA; application status, supporting data and product risk characteristics remain relevant.
  • PACHA and Vuse Pro have emerged as company-level examples of the May policy, but the products have not gained marketing authorization as a result.

2Firsts

September 28, 2026

The U.S. Food and Drug Administration has revised the rules under Import Alert 98-07 to incorporate its May 2026 enforcement-priority policy for certain electronic nicotine delivery systems, or ENDS, marketed without required premarket authorization.

FDA's current Import Alert 98-07 page lists a publication date of September 18 and states that a September 4 revision updated the “Reason for Alert” and “Guidance” sections.

The alert continues to use detention without physical examination, or DWPE, for ENDS lacking required FDA marketing authorization. Field divisions are now directed to apply FDA's enforcement-prioritization framework, with Center concurrence required when necessary before certain detention or refusal decisions.

May Enforcement Policy Added to Import Alert 98-07

FDA issued its final guidance, Enforcement Priorities for Certain New Tobacco Products Marketed Without Premarket Authorization, in May 2026.

The policy covers certain unauthorized ENDS and oral nicotine pouch products and describes how the agency intends to prioritize enforcement resources.

The revised Import Alert 98-07 now explicitly references the May guidance.

FDA states that field divisions may detain ENDS lacking required marketing authorization without physical examination in accordance with the agency's enforcement-prioritization framework.

When Center concurrence is needed, compliance officers are instructed to create a case and submit it to the Center for Tobacco Products for a “Center Review of Detained Shipment for Refusal.”

The review is used to determine whether the ENDS product is subject to the May guidance or should not be detained or refused for another reason, such as a court order.

A Pending PMTA Does Not Automatically Remove Enforcement Priority

FDA's May policy applies only to certain products that meet specified conditions.

The agency has said it generally does not intend to prioritize enforcement against some products whose applications have reached qualifying stages of FDA review, including certain accepted and filed applications and qualifying supplemental PMTAs.

For non-tobacco-flavored ENDS, the application must also contain information FDA considers sufficient to evaluate whether the product meets the statutory appropriate-for-the-protection-of-public-health standard.

Products may remain enforcement priorities based on other characteristics, including designs or presentations FDA considers particularly appealing to youth.

The policy governs FDA's enforcement priorities and does not grant marketing authorization.

PACHA and Vuse Pro Show How May Policy Is Affecting the Market

Company disclosures since May show the policy beginning to affect product and commercial decisions.

2Firsts previously reported that Charlie's Holdings said FDA notified the company on June 23 that 30 PACHA e-cigarette SKUs with submitted PMTAs had been tentatively identified for inclusion on a planned public-facing FDA webpage.

The page is intended to identify certain unauthorized products for which FDA generally does not intend to prioritize enforcement of premarket-authorization requirements.

The PACHA products were only tentatively identified for inclusion and did not receive FDA marketing authorization as a result.

A separate example involves R.J. Reynolds Vapor Company, part of British American Tobacco.

The company has introduced four flavored Vuse Pro pods in selected U.S. markets: Peach, Berry, Watermelon and Fresh Mint.

R.J. Reynolds told 2Firsts that the products are under FDA scientific review and are being marketed pursuant to the agency's May 2026 enforcement guidance.

The four pods had not received FDA marketing authorization at the time of the disclosure.

BAT previously said it planned to reach about 25,000 U.S. retail outlets with Vuse Pro in the third quarter of 2026 and add roughly another 25,000 in the fourth quarter.

These cases show the May policy affecting product launches and distribution decisions, while the latest Import Alert 98-07 revision applies the same enforcement framework to import detention procedures.

DWPE Remains the Core Import Enforcement Tool

Import Alert 98-07 covers ENDS lacking required premarket authorization, including devices that deliver aerosolized e-liquid when inhaled as well as related components and parts.

Under DWPE, FDA may detain covered products based on the import alert and other relevant information without first physically examining each shipment.

The alert identifies grounds for refusal where a tobacco product appears to lack an effective FDA marketing order and therefore appears adulterated under the Federal Food, Drug, and Cosmetic Act, or where required notices or information appear not to have been provided.

OASIS charge codes include:

  • TP NO PMTA — lack of required premarket tobacco marketing authorization;
  • TP NO SE — failure to provide required substantial-equivalence-related notice or information.

FDA lists the country coverage as “MULTIPLE COUNTRIES.” The alert is not a China-specific or single-country measure.

Legal Status of Unauthorized Products Remains Unchanged

The revision does not change the statutory status of new tobacco products that lack required marketing authorization.

Under federal tobacco law, new tobacco products generally must obtain the applicable FDA marketing authorization before lawful marketing.

FDA's decision not to prioritize enforcement against a particular product does not grant that product marketing authorization and does not constitute FDA approval of its safety or regulatory status.

That distinction applies to PACHA, Vuse Pro and other products that may qualify under the May enforcement framework.

Import Enforcement Aligns With May Risk-Based Framework

FDA's May guidance first changed how the agency prioritizes enforcement against certain unauthorized ENDS and nicotine pouch products.

Companies have since begun making product and distribution decisions under that framework, while FDA has also proposed a public-facing webpage identifying products for which it generally does not intend to prioritize enforcement of premarket requirements.

The Import Alert 98-07 revision now specifies how that framework applies at the border: unauthorized ENDS remain subject to DWPE, but field divisions must apply the May enforcement priorities, with some cases subject to additional CTP review.

For ENDS manufacturers relying on overseas production and U.S. imports, marketing-authorization status, PMTA review status, product characteristics and FDA's current enforcement priorities may all affect how shipments are handled at entry.

Follow 2Firsts for updates on U.S. FDA tobacco regulation, PMTA policy and e-cigarette import enforcement.

Cover Image: generated by AI

 

JUUL2 Sued Within a Week of FDA Authorization as AJ Marketing Alleges Infringement of Programmable Vape Patent
JUUL2 Sued Within a Week of FDA Authorization as AJ Marketing Alleges Infringement of Programmable Vape Patent
Less than a week after JUUL2 received U.S. FDA marketing authorization on August 28, 2026, JUUL Labs was sued for patent infringement in federal court in Delaware. AJ Marketing LLC filed the complaint on September 3, alleging that both JUUL 1 and JUUL2 infringe U.S. Patent No. 8,851,068 B2. The patent covers aspects of programmable electronic vaporization devices, including controls over dose delivery, usage frequency and operating parameters. The plaintiff is seeking reasonable royalties and ongoing royalties tied to the remaining life of the patent. JUUL has not yet publicly responded to the case.
Sep.10
Charlie’s Says 30 PACHA Vape SKUs Tentatively Identified for FDA’s Non-Priority Enforcement Public List
Charlie’s Says 30 PACHA Vape SKUs Tentatively Identified for FDA’s Non-Priority Enforcement Public List
Charlie’s Holdings said the U.S. Food and Drug Administration notified the company on June 23, 2026, that 30 PACHA vape SKUs with submitted PMTAs had been tentatively identified for inclusion on a planned public-facing FDA webpage. Under enforcement guidance issued by FDA in May, the webpage is intended to identify certain unauthorized products for which the agency generally does not intend to prioritize enforcement of premarket authorization requirements. Charlie’s disclosed the development alongside second-quarter revenue of $3.8 million, up 116% year over year.
Aug.25
FDA Grants PMTA Authorization to 11 ZYN ULTRA Nicotine Pouches, Bringing Total Authorized Pouches to 43
FDA Grants PMTA Authorization to 11 ZYN ULTRA Nicotine Pouches, Bringing Total Authorized Pouches to 43
The U.S. Food and Drug Administration authorized 11 ZYN ULTRA nicotine pouch products made by Swedish Match USA through the premarket tobacco product application pathway on August 21, 2026. Ten of the authorized products have a labeled nicotine content of 9 mg, while ZYN ULTRA Smooth was authorized at 11 mg. The reviews were conducted through FDA’s nicotine pouch PMTA pilot program. FDA has now authorized 43 nicotine pouch products, including 23 through the pilot.
Aug.24
India Duty-Free Nicotine Pouch Sales Face Regulatory Test as ZYN, FOX Classification Remains Open
India Duty-Free Nicotine Pouch Sales Face Regulatory Test as ZYN, FOX Classification Remains Open
The Bombay High Court has ruled that airport duty-free shops are not exempt from India's domestic regulatory laws merely because they operate beyond the customs barrier, leaving in place a sales halt covering ZYN and FOX nicotine pouches at Mumbai's international airport. The court, however, did not determine that the products necessarily qualify as "drugs" under India's Drugs and Cosmetics Act. The retailers have four weeks to submit product information to the appropriate authorities, including CDSCO, which must complete its review within 30 days of receiving the submissions.
Sep.24
U.S. Military Could Test Nicotine Pouches and Vapes for Smoking Cessation as Washington Examiner Cites ZYN and Potential $4 Billion Reduction in Related Defense Costs
U.S. Military Could Test Nicotine Pouches and Vapes for Smoking Cessation as Washington Examiner Cites ZYN and Potential $4 Billion Reduction in Related Defense Costs
The House-passed FY2027 National Defense Authorization Act includes a provision authorizing the defense secretary to conduct a one-year smoking-cessation pilot for active-duty service members. Section 707 lists counseling, nicotine gum and patches alongside what the bill calls "electric nicotine delivery systems," nicotine pouches and heat-not-burn products. A recent Washington Examiner op-ed cited ZYN as an example in arguing for the provision, but the legislation does not name any commercial brand or supplier. ZYN is made by PMI-owned Swedish Match USA, with specified products holding FDA marketing authorizations and modified risk orders.
Sep.20
UK HMRC Issues One-Month Countdown Warning, Urges Vape Businesses to Prepare for New Tax Rules
UK HMRC Issues One-Month Countdown Warning, Urges Vape Businesses to Prepare for New Tax Rules
The UK’s Vaping Products Duty and Vaping Duty Stamps Scheme will take effect on October 1, 2026. All vaping liquids manufactured in or imported into the UK will face a flat excise duty of £2.20 per 10ml, whether or not they contain nicotine. Newly manufactured or imported products released onto the UK market from October 1 will require a valid duty stamp, while eligible existing unstamped inventory can continue to be sold through March 31, 2027. From April 1, 2027, all vaping products outside duty suspension must carry a valid stamp.
Sep.03