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.

U.S. Customs Plan to Require Foreign Export Declarations Could Deal ‘Devastating’ Blow to China’s Vape Exports, Logistics gl Expert Says
U.S. Customs Plan to Require Foreign Export Declarations Could Deal ‘Devastating’ Blow to China’s Vape Exports, Logistics gl Expert Says
A U.S. Customs and Border Protection proposal to collect foreign export declarations and other overseas customs documents could expose discrepancies in the value, classification and description of China-made vape shipments entering the United States. A veteran Chinese logistics professional told 2Firsts that the measure, if implemented, could undermine the all-inclusive shipping model used by some unauthorized vape exporters and push parts of the trade toward costlier underground channels. The risk extends beyond higher duties: accurately declared products may also be more readily identified as unauthorized e-cigarettes subject to FDA enforcement.
Special Report
Sep.07
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
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
Special Report | Vape bans and tougher rules: the South Caucasus takes different paths
Special Report | Vape bans and tougher rules: the South Caucasus takes different paths
Azerbaijan's sweeping e-cigarette ban has raised concerns over enforcement errors and the emergence of illicit sales, while neighboring Armenia is tightening technical rules and preparing higher excise taxes. Georgia, meanwhile, has resisted calls for broader vape restrictions and introduced preferential taxes for some domestically produced cigarettes. The divergent approaches across the South Caucasus highlight a regional policy dilemma: how to curb nicotine use and protect public health without encouraging black markets or creating unintended economic consequences for businesses and consumers.
Nov.03
PMI's IQOS Extends ZAMNA Electronic-Music Partnership to Spain as Vogue España Publishes Branded Content
PMI's IQOS Extends ZAMNA Electronic-Music Partnership to Spain as Vogue España Publishes Branded Content
Philip Morris International's IQOS has extended its partnership with electronic-music event brand ZAMNA to Spain, setting up a House of IQOS at ZAMNA Madrid. Vogue España and Time Out Madrid subsequently published branded content clearly labeled as collaborations with IQOS. PMI has also expanded its company-owned IQOS boutique network in Spain to seven cities this year. The company says IQOS's adjusted heated-tobacco market share in Europe reached 12.6% in the first quarter of 2026, with Spain among its stronger-performing European markets.
Sep.20
Product | DOJO Launches 0+6ml BLAST7K Fresh in UK in September, Retaining 2+8ml Pod Compatibility Ahead of October Per-Milliliter Vaping Duty
Product | DOJO Launches 0+6ml BLAST7K Fresh in UK in September, Retaining 2+8ml Pod Compatibility Ahead of October Per-Milliliter Vaping Duty
DOJO officially launched the BLAST7K Fresh on September 17, 2026, introducing a UK-market prefilled pod product with 6ml of e-liquid and a manufacturer-rated capacity of up to 7,000 puffs. The device features a 1000mAh rechargeable battery, the INSTA-JUICED structure and COREX BLAST dual-mesh technology, while retaining compatibility with existing BLAST pods. The launch comes less than two weeks before the UK's Vaping Products Duty takes effect on October 1. At the new duty rate, 6ml of vaping liquid would correspond to £1.32 in VPD. DOJO has not stated that the product's 6ml format was designed in response to the new duty.
Sep.20