E-Cigarette Distributor Sues to Stop FDA from Preventing the Importation of Electronic Cigarettes

Feb 25, 2011   

In an ongoing saga of litigation between electronic cigarette (“E-Cigarette”) distributors and the FDA regarding the power of the FDA to regulate and prevent the importation of E-Cigarettes, another E-Cigarette distributor has thrown its hat into the ring. Last week, Totally Wicked “E.Liquid (“TWI”) filed suit in the United States District Court in Washington DC to prevent the FDA from regulating TWIs electronic cigarettes as a drug, medical device, or combination of the two and from barring their importation. A copy of that lawsuit can be seen here. TWI claims that their product is a tobacco product and should be regulated as such and not as a drug, medical device or combination thereof.

On December 7, 2010, in the case of NJOY v. FDA, the United States Court of Appeals for the D.C. Circuit affirmed a District Court decision in the e-cigarette industrys favor which enjoined the FDA from regulating e-cigarettes as drugs. That opinion can be seen here. However, it appears that the FDA is nevertheless continuing to regulate of E-Cigarettes despite the DC Circuits ruling, and has issued additional import alerts regarding E-Cigarettes. As such, TWI has now filed suit to protect its own interests and to have the D.C. Circuits opinion applied to its own products.

Fuerst Ittleman lawyers are experienced in bringing suit against regulatory agencies such as the FDA when they seek to regulate products outside their jurisdiction or in ways not in conformity with their own regulations.