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.

French Anti-Tobacco Group Questions PMI’s IQOS “Curiosity” Campaign Over Potential Youth Appeal
French Anti-Tobacco Group Questions PMI’s IQOS “Curiosity” Campaign Over Potential Youth Appeal
According to French anti-tobacco group Générations Sans Tabac, Philip Morris International’s (PMI) IQOS “Curiosity” campaign has drawn attention from public health advocates. The group argues that the campaign uses themes including curiosity, exploration and lifestyle branding that could increase interest among younger audiences. PMI has positioned IQOS as a key part of its smoke-free product strategy, while France maintains strict restrictions on tobacco and nicotine product marketing. The debate highlights ongoing tensions between heated tobacco branding strategies and public health concerns in Europe.
Jul.24
Product | BAT Launches glo Hyper pro+ in Japan, Upgrading the Hyper Platform With Faster Start and Smart Device Management
Product | BAT Launches glo Hyper pro+ in Japan, Upgrading the Hyper Platform With Faster Start and Smart Device Management
British American Tobacco Japan (BAT Japan) has introduced glo Hyper pro+, an upgraded device within the existing glo Hyper platform. The device adds QuickStart™ rapid heating technology, an EasyView™ display and maintenance notification features to improve daily usability. Launched in Japan on July 13, 2026, glo Hyper pro+ maintains compatibility with existing Hyper-format tobacco sticks, including neo, Lucky Strike and KENT.
Jul.30
Reuters: Shopify May Ban All Vape Sales This Week Amid Illegal Market Crackdown
Reuters: Shopify May Ban All Vape Sales This Week Amid Illegal Market Crackdown
Reuters reported that Shopify may ban all vape products from its platform as soon as this week, signaling that U.S. enforcement against the illegal vape market is expanding from retailers and importers to e-commerce platforms and payment networks.
MarketBAT
Jun.23 by 2Firsts Perspectives
Indiana’s Foreign-Made Vape Ban Takes Effect, Forcing Brands and Retailers to Adjust Supply Chains
Indiana’s Foreign-Made Vape Ban Takes Effect, Forcing Brands and Retailers to Adjust Supply Chains
A new Indiana law restricting the sale of foreign-made vape products has taken effect, requiring retailers to adjust inventory and sourcing practices. According to The Sun, WDRB and other reports, some local vape shops are reviewing product origins and supplier information to comply with the new requirements. The measure represents a broader shift in U.S. vape regulation, with oversight expanding beyond product authorization and sales rules toward manufacturing origin and supply-chain management.
Jul.24
Australia’s Daily Smoking Rate Falls to Record Low of 5.8% as Nicotine Use Patterns Shift
Australia’s Daily Smoking Rate Falls to Record Low of 5.8% as Nicotine Use Patterns Shift
According to the Australian Institute of Health and Welfare’s National Drug Strategy Household Survey, daily smoking among Australians aged 18 and over fell to a record low of 5.8% in 2025. Health Minister Mark Butler said Australia now has around 500,000 fewer daily smokers than three years ago and credited the government’s vaping reforms as part of broader progress. Among people aged 14 and over, daily smoking declined from 8.3% in 2022-23 to 5.6% in 2025. Daily vaping rates stabilised at 3.6%, while the government also moved to further restrict access to nicotine pouches through unapproved therapeutic import pathways.
Jul.21
French Vape Market Under Pressure as Europe’s First Listed Vape Company Kumulus Vape Reports 7.8% H1 Revenue Decline, Retail Sales Rise 41.5%
French Vape Market Under Pressure as Europe’s First Listed Vape Company Kumulus Vape Reports 7.8% H1 Revenue Decline, Retail Sales Rise 41.5%
Kumulus Vape, Europe’s first publicly listed vape company, reported a 7.8% year-on-year decline in first-half 2026 revenue. Amid changing conditions in France’s vape market, the company said channel diversification helped offset pressure, with physical store sales increasing 41.5% year on year. Listed on Euronext Access Paris in 2019 and later transferred to Euronext Growth Paris, Kumulus Vape is viewed as a representative company of Europe’s vape sector. Its performance highlights the industry’s shift from rapid expansion toward more operationally focused growth.
Jul.27