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.

Canada’s Federal Vape Flavor Restrictions Remain Unclear Five Years After Announcement
Canada’s Federal Vape Flavor Restrictions Remain Unclear Five Years After Announcement
Five years after Canada’s federal government announced plans to restrict vaping flavors nationwide, Health Minister Marjorie Michel has not said when or whether the measure will still proceed. In 2021, Health Canada said it planned to limit vaping flavors nationwide to mint, menthol and tobacco, citing evidence that fruity and sweet flavors appeal to youth.
May.11 by 2FIRSTS.ai
Alberta Seeks to Add New Vape Restrictions on Top of Existing Tobacco Framework
Alberta Seeks to Add New Vape Restrictions on Top of Existing Tobacco Framework
A new Alberta bill aimed at reducing vaping rates, especially among young people, is moving into the legislative process. Bill 208, the Vaping Reduction Act, was introduced by United Conservative Party MLA Chelsae Petrovic and appears to build on the province’s existing Tobacco, Smoking and Vaping Reduction Act. Early reporting suggests the bill could focus on disposable vapes and impose further limits on youth access to vaping products.
Apr.15 by 2FIRSTS.ai
PMI U.S. White Paper Calls for Greater Access to FDA-Authorized Smoke-Free Alternatives and Risk-Based Taxation
PMI U.S. White Paper Calls for Greater Access to FDA-Authorized Smoke-Free Alternatives and Risk-Based Taxation
PMI’s U.S. business released a white paper and cited a national online survey showing that 79.00% of Americans surveyed believe more should be done to reduce smoking-related harm. The paper calls on policymakers, public health authorities, and medical professionals to place cigarette smoking back at the center of public health priorities, and recommends broader access to FDA-authorized smoke-free alternatives, clearer nicotine risk communication, and risk-based taxation.
Apr.15 by 2FIRSTS.ai
PMI U.S. Launches America250 Initiative, Introduces Limited-Edition ZYN Patriotic Storage Can
PMI U.S. Launches America250 Initiative, Introduces Limited-Edition ZYN Patriotic Storage Can
PMI U.S. launched its America250 initiative on June 1 to commemorate the 250th anniversary of the United States. As part of the program, the company introduced a limited-edition ZYN Patriotic Storage Can and released an IQOS U.S. Edition device. Beyond product-related activities, the initiative also includes innovation funding, nationwide events and community engagement programs.
PMI
Jun.05
Thailand’s Bangkok Port Customs Reports E-Cigarette and Nitrous Oxide Seizure Worth More Than THB 27 Million
Thailand’s Bangkok Port Customs Reports E-Cigarette and Nitrous Oxide Seizure Worth More Than THB 27 Million
Bangkok Port Customs on April 28 announced the seizure of 52,000 complete e-cigarettes, 100 gallons of e-liquid and 126,226 canisters of nitrous oxide, with total economic damage exceeding THB 27 million, or about USD 831,178 based on an April 28 USD/THB rate of 32.484. The e-cigarette and e-liquid shipment was valued at THB 5.56 million, or about USD 171,161, while the nitrous oxide shipment was valued at THB 21.27 million, or about USD 654,784.
Apr.29 by 2FIRSTS.ai
State Attorneys General Urge Visa, Mastercard and Others to Stop Processing Illicit E-Cigarette Transactions
State Attorneys General Urge Visa, Mastercard and Others to Stop Processing Illicit E-Cigarette Transactions
Fourteen U.S. state attorneys general sent a joint letter dated April 14, 2026 to Visa, Mastercard, American Express and Discover, asking them to immediately help stop the sale of illicit e-cigarette products by cutting off payment access.
Apr.17 by 2FIRSTS.ai