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.

2Firsts Hosts U.S. Market Mid-Year Briefing: Companies Need to Reassess Product and Market-Access Strategies
2Firsts Hosts U.S. Market Mid-Year Briefing: Companies Need to Reassess Product and Market-Access Strategies
2Firsts held its 2026 U.S. Market Compliance and Development Mid-Year Briefing in Shenzhen, China, on July 28. The discussion examined how state-level requirements, proposed foreign-establishment registration rules and expanding supply-chain responsibilities are changing product and investment decisions in the U.S. tobacco and nicotine market.
Jul.29
Product | SKE Launches FRESA PRO in the U.S., Introducing Fresh Lock Technology for E-Liquid Management in High-Capacity Vapes
Product | SKE Launches FRESA PRO in the U.S., Introducing Fresh Lock Technology for E-Liquid Management in High-Capacity Vapes
Shenzhen SKE Technology has launched the FRESA PRO in the United States, a high-capacity rechargeable disposable vape featuring Fresh Lock electromagnetic valve supply control technology. The device combines a claimed capacity of up to 40,000 puffs, dual mesh coils, dual output modes and a transparent tank design. The launch reflects the high-capacity disposable vape segment’s shift from puff-count competition toward improved e-liquid management and device-level experience.
Aug.03
Malaysia Withdraws Appeal Against Liquid Nicotine Ruling as Vape Regulation Framework Enters New Phase
Malaysia Withdraws Appeal Against Liquid Nicotine Ruling as Vape Regulation Framework Enters New Phase
Malaysia’s government has withdrawn its appeal against a High Court ruling concerning the regulatory status of liquid nicotine used in vape and e-cigarette products, according to reports by New Straits Times, Free Malaysia Today and CodeBlue on August 18, 2026. The Kuala Lumpur High Court ruled on May 15 that the government’s decision to remove liquid nicotine from the scheduled poisons list under the Poisons Act 1952 was irrational and made without proper consultation with the Poisons Board. The withdrawal ends the government’s appeal process, while the future regulatory framework for nicotine vape products remains under discussion.
Aug.21
Kuwait Tightens Tobacco and Nicotine Rules, Bans Under-21 Sales and Extends Public Smoking Restrictions to Vapes and Heated Tobacco
Kuwait Tightens Tobacco and Nicotine Rules, Bans Under-21 Sales and Extends Public Smoking Restrictions to Vapes and Heated Tobacco
Kuwait has issued a comprehensive new regulatory framework covering tobacco, e-cigarettes, heated tobacco and other nicotine products. Ministerial Decision No. 237 of 2026, signed by Health Minister Ahmad Al-Awadhi, will take effect on January 1, 2027. The rules prohibit sales to people under 21 and ban sales through websites, apps, social media and delivery services. E-cigarettes and heated tobacco products will also be treated as smoking in public and enclosed places where smoking is prohibited. Nicotine pouches and other oral nicotine products not registered as medicines are banned.
Regulations
Aug.17 by 2Firsts Perspectives
Exclusive Analysis | Smoore H1 Revenue Rises 19.9% Amid Growth Concentration, Profit Pressure and Slowing Momentum
Exclusive Analysis | Smoore H1 Revenue Rises 19.9% Amid Growth Concentration, Profit Pressure and Slowing Momentum
Smoore’s first-half 2026 revenue rose 19.9%, but the results revealed growing structural risks beneath the headline growth. Heat-not-burn contributed about 61% of incremental revenue and remains driven largely by one core customer, while traditional vaping markets diverged, own-brand growth slowed and China enterprise revenue declined further. Gross profit and adjusted profit lagged revenue growth, while second-quarter revenue growth slowed to about 1.9%, putting greater focus on the quality, concentration and sustainability of Smoore’s expansion.
Capital Markets
Aug.20
Russian Strikes Destroy JTI and Imperial Brands Ukraine Warehouses, With Losses Reaching Tens of Millions of Hryvnias
Russian Strikes Destroy JTI and Imperial Brands Ukraine Warehouses, With Losses Reaching Tens of Millions of Hryvnias
According to Ukrainska Pravda, Russian strikes on the Kyiv region during the night of Aug. 4-5, 2026, damaged warehouses storing products of Japan Tobacco International (JTI) and Imperial Brands Ukraine. JTI said a finished goods warehouse in Kyiv Oblast was destroyed, with no employees injured, and that it did not expect disruptions to retail supplies. Imperial Brands Ukraine said products stored at warehouses of distributors and retail partners were affected and estimated losses from the strikes at “tens of millions of Ukrainian hryvnias” (roughly hundreds of thousands of U.S. dollars).
JTI
Aug.07