Federal Appeals Court Rejects E-Cigarette Marketing Challenge Again.

Aug.31.2022
Federal Appeals Court Rejects E-Cigarette Marketing Challenge Again.
Federal appeals court rejects request to review FDA ban on marketing e-cigarettes, marking the seventh such loss for manufacturers.

In four separate rulings, the Federal Appeals Court has once again rejected requests from electronic cigarette manufacturers to review the FDA's marketing rejection orders (MDO). Seven companies have now lost their challenges in the circuit courts, while six have emerged victorious.


A three-judge panel in the Seventh Circuit Court of Appeals unanimously ruled against Gripum LLC, an Illinois-based company producing bottled e-cigarette liquid under several brands, and upheld the decision of the FDA.


The company known as Gripum, also referred to as the OPMH project, submitted a pre-market tobacco application (PMTA) in September 2020 for approximately 200 bottled e-liquid products with non-tobacco flavors. The application was received by the FDA's Center for Tobacco Products in September. On August 8th, 2021, Gripum submitted a letter of intent for review and was granted a delay on FDA enforcement in November of the same year. On April 20th of this year, the company participated in an oral argument in court.


Gripum alleges that the FDA's refusal to allow marketing is arbitrary and capricious, as neither Congress (in the Tobacco Control Act) nor the agency (in its guidance documents) have "established any necessary, discernible standards" to determine whether Gripum's products are "appropriate for the protection of public health." The company also argues that the FDA changed the evidence standard for PMTAs after the application deadline had passed and failed to conduct personalized PMTA reviews as required by the Tobacco Control Act.


The Federal Appeals Court still faces multiple challenges on other issues, as well as unresolved internal appeals within the FDA.


The court rejected all three arguments presented by Gripum, stating that the FDA's "method of decision-making was both reasonable and in accordance with the Tobacco Control Act.


Two electronic cigarette manufacturers, Triton Distribution and Vaptasia of the Fifth Circuit Court of Appeals, as well as four companies from Washington, D.C., had previously failed in similar reasoning during two rounds of appeals. However, last week, six small electronic cigarette companies won support for their appeal against the FDA's decision from the Eleventh Circuit Court of Appeals.


Several federal appellate courts still have multiple challenges, and there are unresolved internal appeals within the FDA.


Two of the three judges who opposed Gripum were nominated to the court by the Democratic president, while the third was nominated by a Republican. The headquarters of the Seventh Circuit Court is located in Chicago and covers appeals from Illinois, Indiana, and Wisconsin.


Gripum can now seek an en banc review of the case (a full rehearing by the Seventh Circuit Court of Appeals). Triton and Vaptasia are seeking this option in the Fifth Circuit Court of Appeals.


Statement:


This article is compiled from third-party information and is intended solely for industry communication and learning.


This article does not represent the views of 2FIRSTS and 2FIRSTS cannot confirm the authenticity or accuracy of the article's content. The translation of this article is only intended for industry exchange and research purposes.


Due to limitations in translation ability, the translated article may not fully reflect the original text. Please refer to the original text for accuracy.


2FIRSTS aligns completely with the Chinese government regarding any domestic, Hong Kong, Macau, Taiwan, or foreign-related statements and positions.


The copyright of the compiled information belongs to the original media and author. If there are any violations, please contact us for removal.



Disclaimer

This article is provided solely for professional research, industry discussion, and informational purposes. Any references to brands, companies, products, technologies, or policies are made for factual reporting and analytical purposes only, and do not constitute endorsement, recommendation, promotion, or advertising by 2Firsts.

Nicotine-containing products, including but not limited to cigarettes, e-cigarettes, heated tobacco products, and nicotine pouches, carry significant health risks. Readers are responsible for complying with all applicable laws and regulations in their respective jurisdictions, including age restrictions and access limitations.

The information contained in this article should not be regarded as investment, legal, medical, regulatory, or commercial advice. While 2Firsts strives to ensure the accuracy and reliability of its content, it does not assume liability for any direct or indirect loss arising from errors, omissions, inaccuracies, or reliance on the information contained herein.

This article is not intended for individuals below the legal age for accessing tobacco or nicotine-related information in their jurisdiction.

 

Copyright Notice

This article is either original content produced by 2Firsts or content reproduced, translated, summarized, or adapted from third-party sources with attribution where applicable. The intellectual property rights of the original content remain with 2Firsts or the respective original rights holders.

No individual or organization may copy, reproduce, distribute, republish, modify, translate, or otherwise use this content without prior authorization. Any unauthorized use may result in legal action.

For copyright-related inquiries, corrections, or removal requests, please contact: info@2firsts.com.

 

AI-Assisted Translation and Editing Notice

Portions of this article may have been translated, edited, or reviewed with the assistance of artificial intelligence tools to improve efficiency and readability. Due to the limitations of AI-assisted translation and editing, discrepancies, omissions, or inaccuracies may exist when compared with the original source.

Where applicable, readers are advised to refer to the original source for the most complete and accurate information. If you identify any errors or believe that any content infringes upon your rights, please contact us at info@2firsts.com, and we will review and address the matter promptly.

Japan Survey Finds 49.5% Would Cut Tobacco Use if Prices Rise, 64.6% Show Interest in Nicotine-Free Alternatives
Japan Survey Finds 49.5% Would Cut Tobacco Use if Prices Rise, 64.6% Show Interest in Nicotine-Free Alternatives
A September online survey commissioned by Japanese smoking-accessories company Lightec found that 49.5% of respondents would consider reducing tobacco use if prices rose further, while 25.1% would consider switching to cheaper brands and 14.5% would consider using or combining alternatives such as vapes and nicotine-free herbal sticks. Another 64.6% expressed some level of interest in such alternatives. The survey covered 1,088 respondents aged 20 to 70 and was conducted by a company that sells NICOLESS nicotine-free vaping and herbal-stick products, meaning its findings should not be treated as representative of Japan's smoking population.
DATA
Oct.12
FDA Revises Import Alert 98-07 Rules, Bringing May Enforcement Priorities Into Unauthorized ENDS Detentions
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.
News
Sep.28 by 2Firsts Perspectives
Pennsylvania Vape Directory Law Survives Court Challenge From Nova Distro and Others Amid Similar Rulings Across States
Pennsylvania Vape Directory Law Survives Court Challenge From Nova Distro and Others Amid Similar Rulings Across States
A U.S. federal court upheld Pennsylvania's vape directory law on October 14, rejecting a challenge brought by Nova Distro, 101 Distributors and companies operating Tobacco Hut retail stores. Court records show that vaping accounts for about 60% of Tobacco Hut's profits and that the chain held approximately $2 million in inventory potentially subject to seizure under the law as of June 2. Pennsylvania began enforcement on October 19. The ruling follows similar appellate decisions in other states, even as new research shows that unlisted vaping products continue to account for substantial sales in states with established directories.
Regulations
Oct.22
Arizona Turns to a 50% Retail Vape Tax as Tobacco Tax Revenue Falls 47% From 2008
Arizona Turns to a 50% Retail Vape Tax as Tobacco Tax Revenue Falls 47% From 2008
Arizona's First Things First is pushing for an excise tax equal to 50% of the retail price of vaping products, estimating that the measure could generate about $100 million annually. The agency says its tobacco-tax revenue has fallen 47% from 2008 levels. Arizona has attempted to broaden its nicotine tax base in each of the past two years: a 2025 bill proposed a 50% wholesale-price tax, while a 2026 measure shifted to a 50% retail-price tax covering alternative nicotine products and vapor products. Separately, the state enacted HB 4001 this year to establish a new licensing and sales framework for alternative nicotine products.
Sep.21
Product|AIR Files U.S. PMTA for Crown Switch. Can Greentank's Chip Technology Deliver a Compliance and Competitive Advantage?
Product|AIR Files U.S. PMTA for Crown Switch. Can Greentank's Chip Technology Deliver a Compliance and Competitive Advantage?
AIR Global PLC (NASDAQ: AIIR) announced on November 5, 2026, that it had submitted a Premarket Tobacco Product Application (PMTA) to the U.S. Food and Drug Administration (FDA) for Crown Switch, its rechargeable pod vape platform. First launched in Germany in November 2025, the device uses Quantum Chip atomization technology developed by Canadian vaporization technology company Greentank Innovations. German retail versions feature 2mL prefilled pods containing 18mg/mL nicotine in six flavors, while AIR has separately tested two 5% nicotine formulations intended for U.S. development. AIR invested $20 million in Greentank in July and reported approximately $3.4 million in U.S. PMTA-related regulatory costs for the first nine months of 2026. The Crown Switch application has been submitted, but the FDA has not granted marketing authorization.
product
Nov.13
Japanese Addiction Psychiatrist Says Complete Abstinence Is Not Always the Goal of Harm Reduction | 2Firsts Interview
Japanese Addiction Psychiatrist Says Complete Abstinence Is Not Always the Goal of Harm Reduction | 2Firsts Interview
Complete abstinence is not always the goal of addiction treatment under a harm-reduction approach, Japanese psychiatrist Tomohiro Shirasaka told 2Firsts in Manila. In the interview, he discussed patients' quality of life, Japan's shift towards heated tobacco products, and the challenges of quitting smoking for people with mental illness. Drawing on addiction treatment work in the Philippines, he advocated support rather than punishment and questioned whether fear-based health warnings effectively address the reasons people continue smoking.
Nov.10