US Court Upholds FDA's Denial of Avail Vapor's PMTA Application

Dec.15.2022
US Court Upholds FDA's Denial of Avail Vapor's PMTA Application
US Fourth Circuit supports FDA's decision to reject Avail Vapor's PMTA for flavored electronic cigarettes.

On Monday, the Fourth Circuit Court of Appeals in the United States issued an opinion supporting the decision made by the Food and Drug Administration (FDA) to deny Avail Vapor LLC's application to sell its flavored electronic cigarettes and to reject Avail's review request.


According to this opinion, the Tobacco Control Act (TCA) requires manufacturers of new tobacco products to obtain FDA authorization through a pre-market tobacco product application (PMTA) before selling these products. The TCA further requires the FDA to determine whether the marketing of new tobacco products is "appropriate for protecting public health" in order to authorize PMTA.


Avail Vapor is a company that sells electronic cigarette products regulated by the FDA through TCA. This statement indicates that in the constantly developing regulatory framework for electronic cigarettes, Avail submitted a PMTA to the FDA for approval on September 8, 2020.


The court stated that in 2019, the FDA issued new guidelines on the premarket tobacco product application (PMTA) for e-cigarettes to address the "youth e-cigarette epidemic." Specifically, the FDA stated that enforcement decisions would be made based on specific circumstances and that they would continue to evaluate new information to address the growing problem of underage use of flavored e-cigarettes. Additionally, manufacturers of existing e-cigarette tobacco products must submit a PMTA.


According to the opinion, Avail will submit its PMTA for FDA approval before the specified deadline. The court noted that Avail's PMTA focuses on various fruit and dessert-flavored electronic cigarettes. Additionally, Avail has provided a marketing plan that outlines measures to prevent underage use, including giving flavors unusual names, age-restricted physical stores, and sales point systems.


However, on September 15, 2021, the FDA rejected Avail's PMTA and issued a marketing refusal order for its products. In the refusal order, the FDA stated that Avail's products pose a serious risk to adolescents and do not have sufficient offsetting benefits for adults.


Subsequently, Avail filed an administrative appeal against the order, but on February 23, 2022, the FDA upheld its decision and reiterated its concerns for minors' safety. Avail promptly requested that the Fourth Circuit Court review the FDA's refusal order, arguing that it imposed arbitrary standards on the types of information manufacturers must provide in PMTAs and that the FDA's imposition of these standards exceeded its statutory authority.


In a unanimous decision, the court found that the Tobacco Control Act (TCA) grants the FDA broad statutory authority to determine whether the marketing of a new tobacco product is "appropriate for the protection of public health" based on all evidence received. Additionally, the court stated that Avail's arguments and restrictions "completely contradict" the requirements of the FDA under the TCA. Therefore, the court found that the FDA's standards for evaluating information during its PMTA review were fully within its statutory authority.


Furthermore, the court found that the FDA's denial of Avail's PMTA was "hardly arbitrary," and that it appropriately evaluated the evolving science and ever-changing market when assessing the significant risks of teenage addiction to flavored e-cigarettes. Therefore, the court confirmed the FDA's rejection order and denied Avail's request for a review.


Avail is being represented by Thompson Hine LLP.



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.

Product | KT&G Brings LOOP Nicotine Pouches to South Africa, Supporting ASF’s Expansion Across Africa
Product | KT&G Brings LOOP Nicotine Pouches to South Africa, Supporting ASF’s Expansion Across Africa
KT&G has introduced nicotine pouch brand LOOP in South Africa, expanding its modern oral nicotine portfolio. Developed by Swedish company Another Snus Factory (ASF), LOOP is a tobacco-free nicotine pouch brand. KT&G and U.S. tobacco company Altria previously participated in ASF’s strategic development, and the South Africa launch represents a further step in LOOP’s international expansion.
Aug.06
IQOS Global Flagship Space to Open in Tokyo Ginza as PMI Expands Consumer Experience Strategy
IQOS Global Flagship Space to Open in Tokyo Ginza as PMI Expands Consumer Experience Strategy
Philip Morris Japan (PMJ) announced that it will open “IQOS Flagship Ginza” in Tokyo on September 4, 2026. The location will become the first global flagship space for PMI’s IQOS brand. PMJ said the venue will target adult smokers aged 20 and above and combine product experiences, community engagement and local cultural elements. The design will incorporate Japanese natural aesthetics and traditional craftsmanship. The launch reflects PMI’s broader strategy of strengthening consumer engagement through experiential retail and brand spaces. The existing IQOS Store Ginza is scheduled to close on August 30, 2026.
Jul.21
Altria Smokeable Profit Rises 2.4% as Marlboro Share Falls and U.S. Discounts Gain
Altria Smokeable Profit Rises 2.4% as Marlboro Share Falls and U.S. Discounts Gain
Altria’s second-quarter results show a U.S. nicotine market splitting across price, product and regulation. Smokeable profit rose 2.4% as Marlboro pricing offset lower volumes, while discount brand Basic gained share among value-conscious smokers. In oral nicotine, on! PLUS expanded distribution but faced intensifying competition from ZYN and Velo. NJOY remained off the market as patent and regulatory hurdles delayed its return. The broader lesson: U.S. growth increasingly depends on price-tier strategy, retail execution, authorisation and enforcement readiness across the industry.
Special Report
Jul.31
Data|China’s January-May 2026 Device Exports Rise 13% While Nicotine Product Exports Decline 6.9%
Data|China’s January-May 2026 Device Exports Rise 13% While Nicotine Product Exports Decline 6.9%
According to China Customs export data analyzed by 2Firsts, China’s vape export mix continued to evolve during January-May 2026. Exports of electronic vaporisation devices (HS 85434000) increased 13.00% year on year, supported by growth in both shipment volume and average export prices. Meanwhile, exports of nicotine-containing non-combustible products (HS 24041200) declined 6.89%, with lower shipment volumes partly offset by higher average export prices.
Special Report
Jun.30
JTI Makes Third Bet on South Korea as Ploom AURA Enters a Market Dominated by lil and IQOS
JTI Makes Third Bet on South Korea as Ploom AURA Enters a Market Dominated by lil and IQOS
Japan Tobacco International is stepping up its heated tobacco push in South Korea with Ploom AURA. Since its official launch in April 2026, the device's limited First Edition and Glacier White version have sold out, while distribution has expanded across Seoul, Incheon, Gyeonggi Province and airport duty-free channels. The rollout marks JTI's third major attempt to build a stronger heated tobacco position in South Korea, following Ploom TECH in 2019 and Ploom X Advanced in 2024. At the group level, JT plans to invest about ¥800 billion, approximately $5 billion, in reduced-risk products from 2026 through 2028, with heated products and Ploom identified as its primary investment priority.
Aug.14
Imperial Brands Plans Thousands of Job Cuts Across U.S. and Europe in Cost Restructuring
Imperial Brands Plans Thousands of Job Cuts Across U.S. and Europe in Cost Restructuring
According to Reuters, citing Bloomberg News, British tobacco company Imperial Brands PLC plans to cut thousands of jobs across the United States and Europe as part of a cost reduction and organizational restructuring effort. The announcement drew market attention to the company’s shares. The move comes as global tobacco companies continue adjusting their operations amid slower cigarette market growth, changing consumer preferences and the transition toward next-generation nicotine products.
Aug.11