Last week, five e-cigarette manufacturers received bad news in court, but another one received a welcome confirmation that the U.S. Food and Drug Administration (FDA) will delay its review process for a significant amount of time. In fact, the FDA has stated that the internal review appeal for My Vape Order could take until January 2025 to resolve.
Currently, approximately 40 e-cigarette manufacturers are challenging the FDA's marketing denial order (MDO) in court or appealing the MDO through the FDA's internal appeals process.
The Washington D.C. Appeals Court ruling on four small e-cigarette companies.
On July 26th, a panel of three judges from the District of Columbia Circuit Court of Appeals unanimously rejected the MDO appeal of four small e-liquid manufacturers whose cases had been consolidated. The companies in question are:
In 2021, Prohibition Juice Co., Cool Breeze Vapor, Ecig Charleston, and Jay Shore Liquids all received Marketing Denial Orders (MDO) for their flavored electronic cigarette products that were submitted for Pre-Market Tobacco Application (PMTA) a year prior. None of the companies received a stay of execution. Oral arguments for the case were heard in court in April.
Judges have agreed with the majority opinion of the Fifth Circuit Court of Appeals in the recent Triton decision, which found that the FDA did not mislead manufacturers on what evidence was required to demonstrate that flavored electronic cigarettes may be "appropriate for the protection of public health" under the product authorization standards of the Tobacco Control Act. They also agreed that the FDA's decision not to review companies' marketing plans was a "harmless error" because manufacturers "failed to show that personalized review of their submitted plans would have made any difference.
This decision was written by Judge Cornelia T.L. Pillard. The ruling included paragraphs that were copied from the Children's Health and Smoking Prevention pamphlet.
There is no factual basis to Judge Pillard's statements about e-cigarettes causing permanent damage to developing adolescent brains or causing chronic lung diseases.
Judge Pillard wrote: "Flavored tobacco products are at the heart of the issue." "Substantial scientific evidence shows that flavors encourage young people to try e-cigarettes and bring them back along with nicotine." In fact, there is no evidence that flavors are the sole reason for attracting young people, as adults also enjoy non-tobacco flavored e-cigarette products.
Judge Pillard's claims that e-cigarettes can permanently damage the developing teenage brain or cause chronic lung disease are unsupported by factual evidence. They stem from deceptive statements from anti-vaping activists, rather than thoughtful observations from objective legal scholars.
Judge Pirro has been appointed by President Barack Obama as a circuit court judge. The judges who agreed with the decision, Gregory Katsas and Karen LeCraft Henderson, were appointed by Presidents Donald Trump and George H.W. Bush, respectively.
It is currently unknown whether these four electronic cigarette manufacturers will seek a comprehensive review of the case (to be retried throughout the entire Washington D.C. area). Triton and Vapetasia are keeping this option open during the Fifth Circuit.
The court has rejected Myblu MDO's motion for an emergency injunction.
Last week, a circuit court made a ruling unfavorable to Fontem US regarding an emergency motion concerning their myblu device and refill pods that was issued on April 8th. The April 8th motion was the first of its kind for a major tobacco company's equipment and was produced by Fontem, a subsidiary of Imperial Brands (formerly Imperial Tobacco).
Fontem initially stated that it would revoke the Modified Risk Tobacco Product order (MDO) through the FDA's administrative appeals process, and then decided to also submit a petition for review to the District of Columbia. The circuit tour was scheduled for early May. However, the company waited another two months and did not file an emergency motion to halt the MDO until July 12. This delay was deemed too long for the court.
According to a report from Vapor Voice, the court stated that "Fontem has demonstrated that the marketing ban is causing harm, but by waiting for more than two months after the issuance of the marketing ban to seek emergency relief, Fontem weakened its argument about irreparable harm. This delay also suggests that seeking relief from the agency may be a practical option.
The US Food and Drug Administration (FDA) has not yet made a decision regarding the PMTA (premarket tobacco product application) submitted by Fontem for its disposable blue e-cigarettes, which account for half of the brand's sales in the US.
The court also stated that Fontem did not provide strong evidence in their petition for appeal that it could be successful based on their case. In June, the Washington Circuit approved Juul Labs' suspension, but did not offer suspension to any other e-cigarette manufacturers seeking help.
Although its request for a stay was denied, Fortnum's appeal will be expedited. The court has ordered the company to submit its first brief by August 10, with all briefs and replies due by October 14. Afterward, the court will hear oral arguments.
Fontem continues to pursue administrative appeals to the FDA. According to tobacco reporters, the company will continue to sell myblu even without protection from the FDA's enforcement department. The US Food and Drug Administration has not yet made a decision regarding the PMTA submitted by Fontem for their disposable blue electronic cigarette, which accounts for half of the brand's sales in the United States.
The US Food and Drug Administration: My electronic cigarette order MDO appeal may not be resolved until 2025.
The latest update is not from a court ruling, but rather from a court document. The US Food and Drug Administration (FDA) and California-based e-liquid manufacturer My Vape Order (MVO) have submitted a joint status report to the Ninth Circuit Court of Appeals requesting a stay on MVO's reconsideration application, while the FDA's internal appeal against the company's MDO is ongoing.
On September 8, 2021, the United States Food and Drug Administration (FDA) rejected MVO's submission for 52 flavorings (mostly sold under the Air Factory brand), stating that the company's application "lacks sufficient evidence to demonstrate that your flavored ENDS would offer a net public health benefit to adult users sufficient to overcome the risk posed to youth." This is the same reason given for the rejection of PMTA submissions for millions of products sold by hundreds of small companies.
On September 30th, MVO submitted a review request to the Ninth Circuit Court. However, before the court took any action, on October 18th, 2021, the FDA issued a suspension order against MDO, halting any enforcement actions against the company during its internal appeal process. (Later, in January 2022, the FDA partially lifted the MDO, allowing some products to be included in the PMTA review.) On January 5th, the court agreed to suspend MVO's petition and asked for occasional status updates.
In an astonishing development, the FDA has stated in a court filing on July 19th that their review of My Vape Order's MDO may extend all the way to January 2025.
Regardless of the FDA's violation, which forced the agency to push MVO's appeal to the back of the PMTA queue, this is undoubtedly significant news.
According to a statement from the United States government, "As previously stated by all parties to the court, the FDA will complete a reevaluation of the petitioner's application after further review of one or more collaborators of My Vape Order." (It is unclear who the collaborators of MVO are or why their applications must be evaluated first.)
According to the report, due to a large number of pending applications and based on the FDA's current prioritization of applications, the agency estimates that it will complete the re-review of applications from applicants' collaborators by January 2024 or thereabouts, and will complete the re-review of applications from petitioners by January 2025 or thereabouts.
This gives MVO approximately two and a half years to sell their product without worrying about FDA enforcement. The court has accepted the status report and ordered follow-up reports to be submitted by January 31, 2024.
The FDA's violation that caused the agency to push MVO's petition to the back of the PMTA line is significant. If it's the company's strategy that made the agency flee from its PMTA like a scorpion, then perhaps MVO should bottle and sell it.
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