Politics

Appeals Court Says FDA May Not Ban E-Cigarettes

| by Reason Foundation

By Jacob Sullum

Today the U.S. Court of Appeals for the D.C. Circuit ruled that the FDA may not ban electronic cigarettes as an unapproved "drug/device combination."

The appeals court agreed with U.S. District Judge Richard Leon that the battery-powered e-cigarettes, which generate a smoke-free vapor containing nicotine derived from tobacco, are properly regulated as tobacco products.

That means the FDA may regulate the marketing of e-cigarettes under the authority granted by the Family Smoking Prevention and Tobacco Control Act but may not treat them like a pharmaceutical product subject to strict clinical testing requirements (a trick it once tried with conventional cigarettes, only to be slapped down by the Supreme Court).

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The ruling is a victory not just for the companies that brought it, NJOY and Smoking Everywhere, but for smokers who use their products as replacements for ordinary cigarettes, which are far more hazardous.

The D.C. Circuit's decision is here (PDF). More on e-cigarettes here.