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.

Imperial Brands Acquires Helwit Owner Yoik Group for SEK 515 Million, More Than Doubling Swedish Nicotine Pouch Share
Imperial Brands Acquires Helwit Owner Yoik Group for SEK 515 Million, More Than Doubling Swedish Nicotine Pouch Share
Imperial Brands has agreed to acquire 100% of Swedish modern oral nicotine company Yoik Group AB for an initial SEK515 million, equivalent to about US$53.9 million, plus a deferred payment linked to performance over the next two years. Yoik owns nicotine pouch brand Helwit, which held about 3.4% of Sweden’s modern oral nicotine market over the past 12 months. Imperial says the acquisition will more than double its existing share of the Swedish market. Helwit is also sold elsewhere in the Nordics, through European online channels and in selected UK retail outlets.
Sep.08
JTI Invests ₱2.1 Billion to Upgrade Batangas Manufacturing Hub, Adds First Southeast Asia DIET Facility
JTI Invests ₱2.1 Billion to Upgrade Batangas Manufacturing Hub, Adds First Southeast Asia DIET Facility
JTI Asia Manufacturing Corp. has invested ₱2.1 billion, or about $37 million, in its manufacturing site in Malvar, Batangas, Philippines, to expand tobacco-processing capabilities. About ₱1.9 billion is allocated to JTI's first Dry Ice Expanded Tobacco, or DIET, facility in Southeast Asia, while more than ₱177 million has been spent on expanding its Controlled Atmosphere treatment facility. The Batangas plant supplies the Philippine market and exports to 22 overseas markets, making it one of JTI's key manufacturing hubs in Asia.
Sep.24
PMI Expands U.S. ZYN Portfolio With New 1.5 mg and 8 mg Strengths, Moves Toward a Unified 20-Pouch-Per-Can Format
PMI Expands U.S. ZYN Portfolio With New 1.5 mg and 8 mg Strengths, Moves Toward a Unified 20-Pouch-Per-Can Format
Philip Morris International is expanding its U.S. ZYN nicotine pouch portfolio with new 1.5 mg and 8 mg strengths and plans to move its core 3 mg and 6 mg dry-pouch products from 15 to 20 pouches per can in the fourth quarter of 2026. ZYN ULTRA is also commercially available, with FDA authorization covering 10 products at 9 mg and one 11 mg Smooth product. PMI U.S. lists the new 1.5 mg and 8 mg strengths as commercially available, but as of September 10 they do not appear on the FDA’s public authorization list. Public materials do not identify which PMTA submissions cover the two new strengths or their current review status.
Sep.11
From Nicotine Salts to Cocrystals: China’s Shenzhen Huabao institute explores a more stable form for sustained nicotine release
From Nicotine Salts to Cocrystals: China’s Shenzhen Huabao institute explores a more stable form for sustained nicotine release
China-based Shenzhen Huabao Collaborative Innovation Technology Research Institute Co., Ltd. has filed a patent application for a nicotine-ascorbic acid cocrystal, exploring a new solid-state form of nicotine. The patent proposes applications across e-liquids, heated tobacco sticks, oral tobacco, chewing tobacco and snuff. In nicotine pouch tests disclosed in the filing, cocrystal formulations showed less than a 6% decline in nicotine content after three months of accelerated storage and a release profile combining early-stage release with sustained delivery over 60 minutes. The filing reflects exploration of nicotine forms beyond conventional nicotine base and nicotine salts.
Aug.13
2Firsts Exclusive Analysis | RLX Q2 Revenue Rises 14.8%, Company Takes Control of Western European Distributor and Expands Multi-Category Strategy
2Firsts Exclusive Analysis | RLX Q2 Revenue Rises 14.8%, Company Takes Control of Western European Distributor and Expands Multi-Category Strategy
business accounting for 68.5% of sales. A new controlling investment in a Western European distributor and plans to scale modern oral nicotine pouches point to a broader international strategy spanning channels and multiple product categories.
Special Report
Aug.14
UK Vape Tax Countdown: Retailer Vape HQ Estimates 100ml E-liquid Prices Could Rise From £12.99 to £39.39, While Pod Kits Increase Less Than 10%
UK Vape Tax Countdown: Retailer Vape HQ Estimates 100ml E-liquid Prices Could Rise From £12.99 to £39.39, While Pod Kits Increase Less Than 10%
The UK’s Vaping Products Duty (VPD), scheduled to take effect in October 2026, is prompting retailers to assess how different vape categories may be affected. UK retailer Vape HQ has estimated potential price changes under the new volume-based tax system, showing that 100ml shortfill e-liquids could see prices rise from around £12.99 to £39.39, a 203% increase, while 2ml prefilled pod vape kits could rise from £5.99 to £6.52, an increase of about 9%. The estimates highlight how a volume-based tax structure creates uneven cost impacts across product categories.
Aug.19