US FDA Allows My Vape Order to Continue Sales Amid Long Review Process

Aug.02.2022
US FDA Allows My Vape Order to Continue Sales Amid Long Review Process
A US appeals court upheld the FDA's marketing ban on Prohibition Juice, Cool Breeze Vapor, Ecig Charleston and Jay Shore Liquids.

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.


Statement:


This article is compiled from third-party information and is intended for industry exchange and learning purposes only.


This article does not represent the views of 2FIRSTS, and 2FIRSTS cannot confirm the authenticity or accuracy of the content. The translation of this article is solely for industry discussion and research purposes.


Due to limitations in translation abilities, the translated article may not fully reflect the original text. Therefore, it's recommended to refer to the original text for accuracy.


2FIRSTS maintains complete alignment with the Chinese government regarding any domestic, Hong Kong, Macau, Taiwan, or foreign affairs and positions.


The copyright of compiled information belongs to the original media and author. If there is a violation, please contact us for deletion.



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.

Canada Faces Growing Debate as Youth Nicotine Pouch Use Reaches 34.8%
Canada Faces Growing Debate as Youth Nicotine Pouch Use Reaches 34.8%
New Canadian research shows that 34.8% of people aged 17 to 27 have tried nicotine pouches, up more than fourfold from 7.6% in 2022. The findings come as Conservative politicians, Alberta’s government and the tobacco industry push Ottawa to relax current restrictions on pouch sales.
Jun.12
U.S. Convenience Stores Rebalance Backbar as Nicotine Pouches Outpace Cigarettes
U.S. Convenience Stores Rebalance Backbar as Nicotine Pouches Outpace Cigarettes
As cigarette volumes continue to decline, U.S. convenience-store operators are reconfiguring backbar space to accommodate modern oral nicotine products such as nicotine pouches. Industry data show nicotine pouches have become one of the fastest-growing nicotine categories while generating higher margins for retailers.
Jun.12
Ohio Supreme Court Weighs Whether State Consumer Law Can Restrict Flavored Vape Sales
Ohio Supreme Court Weighs Whether State Consumer Law Can Restrict Flavored Vape Sales
The Ohio Supreme Court is hearing a case involving flavored vape sales and whether state authorities can use consumer protection laws to take action against retailers selling unauthorized vape products. Ohio officials argue that selling unauthorized flavored vapes may constitute consumer deception, while retailers argue that tobacco product regulation falls under federal Food and Drug Administration (FDA) authority and that states cannot impose additional restrictions through consumer laws. The case could affect the scope of state-level vape regulation across the United States.
Aug.06
EU Tobacco Rules Face Pushback as Analysis Says 90% of Consultation Responses Raised Objections
EU Tobacco Rules Face Pushback as Analysis Says 90% of Consultation Responses Raised Objections
An analysis by We Are Innovation says more than 90% of over 82,000 responses to the European Commission’s public consultation on the Tobacco Products Directive revision raised at least one substantial objection to the proposed regulatory direction.
Jul.13
PMI Expands IQOS and VEEV Presence at Frankfurt Airport Through Travel Retail Pop-Ups
PMI Expands IQOS and VEEV Presence at Frankfurt Airport Through Travel Retail Pop-Ups
According to The Moodie Davitt Report, PMI Global Travel Retail and Frankfurt Airport Retail have launched new IQOS and VEEV retail spaces at Frankfurt Airport. The installations, located inside and outside duty-free areas, showcase IQOS heated tobacco products and VEEV e-vapor products through product education, consumer interaction and brand experiences. Frankfurt Airport Retail, operated by Fraport Group and Gebr. Heinemann, manages key retail activities at Frankfurt Airport. The initiative follows PMI’s broader strategy of expanding smoke-free products through global travel retail channels. PMI has previously introduced VEEV products across multiple European airports while continuing to expand IQOS and VEEV availability in international markets.
Jul.17
Virginia Tightens Vape and Tobacco Retail Enforcement, With Fines Up to $15,000 Per Unlisted Product
Virginia Tightens Vape and Tobacco Retail Enforcement, With Fines Up to $15,000 Per Unlisted Product
A new Virginia law that took effect on July 1, 2026, requires retailers to obtain permits to sell liquid nicotine, vape and tobacco products, while directing Virginia ABC to conduct inspections and verify that stores sell only products listed in the state directory.
Jul.20