The FDA denied e-cigarette products from entry into the U.S. under the Food, Drug, and Cosmetic Act (FDCA). Two companies, importers of e-cigarette products, challenged the FDA and won a preliminary injunction to release their products. The companies argued that the FDA did not have authority to regulate their products under the FDCA. In this case the appellate court agreed with the lower court, holding the FDA must regulate these products under the Family Smoking Prevention and Tobacco Control Act of 2009 (Tobacco Act) and upheld the injunction. The concurring opinion of the appellate court highlighted the definition of “tobacco products” in the Tobacco Act to include e-cigarettes while the controlling authority, FDA v. Brown and Williamson, did not contain a similar definition.
Sottera, Inc. v. FDA, et. al., 627 F.3d 891 (D.C. Cir. 2010)
United States
Dec 7, 2010
U.S. Court of Appeal, District of Columbia Circuit
Tobacco companies or front groups may challenge any legislative or regulatory measure that affects their business interests. Unlike public interest litigation, these cases seek to weaken health measures. These cases frequently involve the industry proceeding against the government. For example, a group of restaurant owners challenging a smoke free law as unconstitutional.
Government, through its agencies and officials including prosecutors, may seek to enforce its health laws. For example, the government may revoke the license of a retailer that sells tobacco products to minors. These cases may also directly involve the tobacco industry, for example, a government might impound and destroy improperly labeled cigarette packs.
A violation of the right to carry on trade, business, or profession of a person’s choice. This right may also be called the right to free enterprise or economic freedom. The industry may argue that a business should be able to conduct its business without government regulation, including whether or not to be smoke free.
A violation of property rights, sometimes in the form of an expropriation or a taking by the government. The tobacco industry may argue that regulations amount to a taking of property rights because they prevent the use of intellectual property such as trademarks.
Electronic and/or battery-operated devices designed to deliver an inhaled dose of nicotine or other substances. Examples include electronic cigarettes (e-cigarettes), electronic cigars, electronic cigarillos, electronic hookah, vaporizers, and vape pens. ENDS does not include any device or medication approved by the government as nicotine replacement therapy.
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
"Brown & Williamson therefore did not preclude the FDA from regulating only those products for which Congress had passed specific statutes. Rather, it recognized that Congress had consciously developed a statutory scheme for tobacco and health that distinguished tobacco products as customarily marketed from ones marketed for therapeutic purposes. "Thus, what Congress ratified was the FDA's plain and resolute position that the FDCA gives the agency no authority to regulate tobacco products as customarily marketed." Id. at 159, 120 S.Ct. 1291.At oral argument the FDA observed with some justice that the regulatory scheme before the Court in Brown & Williamson addressed only cigarettes and smokeless tobacco; it would have us infer that the Court used the incessantly repeated phrase "tobacco products" as a shorthand, confined to the products before the Court (supplemented by whatever additional products were reached by the six statutes). We find no evidence of any such restrictive intent; certainly the Court did not use the familiar economizing form: "cigarettes and smokeless tobacco ('tobacco products')." The Tobacco Act is wholly consistent with this reading of Brown & Williamson. Written to address the regulatory gap that the case identified, the Tobacco Act provides the FDA with regulatory authority over tobacco products without requiring therapeutic claims. Besides leaving the FDA's authority under the drug/device provisions of the FDCA undisturbed, see 21 U.S.C. § 321(rr)(2) & § 387a(c)(1), the act broadly defines tobacco products as extending to " any product made or derived from tobacco," 21 U.S.C. § 321(rr)(1) (emphasis added). To be sure, this definition could align with a variety of interpretations of Brown & Williamson 's scope (including the one FDA proffers here), but our reading is squarely within that range."
Limitations regarding the use of quotes The quotes provided here reflect statements from a specific decision. Accordingly, the International Legal Consortium (ILC) cannot guarantee that an appellate court has not reversed a lower court decision which may influence the applicability or influence of a given quote. All quotes have been selected based on the subjective evaluations undertaken by the ILC meaning that quotes provided here may not accurately or comprehensively represent a given court’s opinion or conclusion, as such quotes may have originally appeared alongside other negative opinions or accompanying facts. Further, some quotes are derived from unofficial English translations, which may alter their original meaning. We emphasize the need to review the original decision and related decisions before authoritatively relying on quotes. Using quotes provided here should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter in any jurisdiction. Please see the full limitations at https://www.tobaccocontrollaws.org/about.
The FDA denied e-cigarette products from entry into the U.S. under the Food, Drug, and Cosmetic Act (FDCA). Two companies, importers of e-cigarette products, challenged the FDA and won a preliminary injunction to release their products. The companies argued that the FDA did not have authority to regulate their products under the FDCA. In this case the appellate court agreed with the lower court, holding the FDA must regulate these products under the Family Smoking Prevention and Tobacco Control Act of 2009 (Tobacco Act) and upheld the injunction. The concurring opinion of the appellate court highlighted the definition of “tobacco products” in the Tobacco Act to include e-cigarettes while the controlling authority, FDA v. Brown and Williamson, did not contain a similar definition.