The FDA is now facing two lawsuits challenging its ban on vapor products. Lost Art Liquids of Los Angeles, CA, has joined the fight, filing suit on May 19 in the US District Court for Central California.
According to a press release, the suit “challenges FDA’s purported authority to deem and regulate e-liquids and other vapor products as ‘tobacco products’ under the Tobacco Control Act and asserts claims against FDA for violations of the Regulatory Flexibility Act, the 1st and 5th Amendments, and the Administrative Procedures Act.”
Nicopure Labs, the parent company of Halo E-liquids, filed suit on May10. That suit — the first to challenge the FDA’s deeming regulations — asserted that the FDA’s rulemaking process violated the Administrative Procedure Act, and that the deeming rule violates the First Amendment to the Constitution. Lost Art’s complaint “alleges that FDA’s regulation of vapor products is illegal in that it exceeds the very limited and specific scope of authority Congress granted FDA to regulate ‘tobacco products’ under the Tobacco Control Act in 2009.”
“Vapor products are technology products, not tobacco products,” said Ryan Thomas, Lost Art Liquids’ co-founder and chief operating officer. “The legislative history and factual findings that serve as the predicate to the Tobacco Control Act make clear that Congress never intended to give FDA authority to regulate vapor products when it enacted the Tobacco Control Act in 2009.”
“It was created to regulate products like cigarettes and smokeless tobacco, not vapor.”
It is an interesting point of law, but the FDA apparently considers the ban justified by the Tobacco Control Act’s direction that they deem additional products that contain tobacco-derived nicotine to be “tobacco products.”
“FDA has introduced one of the most burdensome, misguided and harmful regulations in its history without adequately sound science, or adhering to required, lawful procedures,” said Thomas. “These regulations will harm Lost Art Liquids’ business and customers by eliminating vapor products from the market, forcing consumers to resort to more harmful products like cigarettes and cigars.”