U.S. Appeals Court Overturns FDA's E-cigarette Marketing Denial Order

Aug.05.2024
U.S. Appeals Court Overturns FDA's E-cigarette Marketing Denial Order
The Fifth Circuit Court of Appeals cited Triton Distribution's ruling as precedent, overturning FDA's Marketing Denial Orders for five e-cigarette manufacturers.

According to a recent report by Vaping 360, on July 31st, a panel of three judges from the United States Fifth Circuit Court of Appeals cited their ruling in the Triton Distribution case as precedent, approving the review requests of five e-cigarette manufacturers and overturning the FDA's Market Denial Order (MDO).


The court has remanded the case back to the FDA for further review.


These five manufacturers can now continue to sell their products until the agency conducts a new scientific review of their pre-market tobacco product application (PMTA), or until the Supreme Court takes action.


The five companies are:


Cloud House, LLC, Paradigm Distribution, SWT Global Supply, Inc., Vaporized, Inc., and SV Packaging, LLC were all involved in a court ruling that stated: (1) the FDA did not provide fair notice to e-cigarette manufacturers about the long-term research requirements for PMTAs; (2) the FDA did not acknowledge or fully explain its changing position; (3) the FDA disregarded the manufacturers' reasonable and serious reliance interests as outlined in guidance prior to the market denial order (MDO).


In January of this year, the Fifth Circuit Court of Appeals ruled in favor of Triton Distribution (appearing in court documents under its legal name Wages and White Lion Investments) with a 10-6 decision in their appeal against the FDA Market Denial Order (MDO).


Two months later, the FDA applied to the Supreme Court for a review of the Fifth Circuit Court of Appeals' ruling, and last month the Supreme Court agreed to hear the FDA's appeal.


This case may be decided in the spring of next year, potentially reshaping the FDA's regulation practices regarding e-cigarette products.


The Fifth Circuit Court of Appeals believes that the issues raised in this week's ruling are similar to those in the Triton case.


In this case, the applicant produces flavored e-cigarette liquid containing nicotine. The applicant spent a significant amount of time and resources preparing their PMTA in accordance with FDA guidance, which stated they did not need to submit long-term clinical studies. However, the FDA used the same boilerplate language to reject their PMTA, just as they have done with Wages petitioners and thousands of other e-cigarette manufacturers. Therefore, for the reasons fully explained in the Wages case, we believe the FDA's actions in this case are also unlawful, as they rejected the applicant's PMTA on the basis of lack of long-term clinical studies.


These five companies submitted petitions to the court in October 2021, questioning the MDOs received in August and September of that year. These refusals were part of the early refusal letters issued one year after the September 2020 PMTA submission deadline. The court consolidated the five cases and granted all five petitioners a stay of execution in November 2021 for review.


In a recent progress report on the PMTA review process, the FDA stated that it has issued MDOs for 46,000 e-cigarette products. Dozens of e-cigarette manufacturers have challenged the refusal orders in federal court.


We welcome news tips, article submissions, interview requests, or comments on this piece.

Please contact us at info@2firsts.com, or reach out to Alan Zhao, CEO of 2Firsts, on LinkedIn


Notice

1.  This article is intended solely for professional research purposes related to industry, technology, and policy. Any references to brands or products are made purely for objective description and do not constitute any form of endorsement, recommendation, or promotion by 2Firsts.

2.  The use of nicotine-containing products — including, but not limited to, cigarettes, e-cigarettes, nicotine pouchand heated tobacco products — carries significant health risks. Users are responsible for complying with all applicable laws and regulations in their respective jurisdictions.

3.  This article is not intended to serve as the basis for any investment decisions or financial advice. 2Firsts assumes no direct or indirect liability for any inaccuracies or errors in the content.

4.  Access to this article is strictly prohibited for individuals below the legal age in their jurisdiction.

 

Copyright

 

This article is either an original work created by 2Firsts or a reproduction from third-party sources with proper attribution. All copyrights and usage rights belong to 2Firsts or the original content provider. Unauthorized reproduction, distribution, or any other form of unauthorized use by any individual or organization is strictly prohibited. Violators will be held legally accountable.

For copyright-related inquiries, please contact: info@2firsts.com

 

AI Assistance Disclaimer

 

This article may have been enhanced using AI tools to improve translation and editorial efficiency. However, due to technical limitations, inaccuracies may occur. Readers are encouraged to refer to the cited sources for the most accurate information.

We welcome any corrections or feedback. Please contact us at: info@2firsts.com

Australia Brings in Deloitte to Support Illicit Tobacco and Vape Enforcement Across Data, Processes and Project Delivery
Australia Brings in Deloitte to Support Illicit Tobacco and Vape Enforcement Across Data, Processes and Project Delivery
Australia’s Department of Home Affairs has hired Deloitte to provide data analytics, business-process, communications and project-delivery support to the Office of the Illicit Tobacco and E-Cigarette Commissioner. The government says Deloitte personnel do not provide policy advice to the Commissioner or the Australian government, with policy development and decision-making remaining with public officials. The arrangement has nevertheless drawn scrutiny because Deloitte has previously provided professional services to several tobacco and vaping companies.
Sep.03
Special Report | Can Nicotine Be Replaced? 6-MN Is Already on the Market While Key Human Evidence Is Still Missing
Special Report | Can Nicotine Be Replaced? 6-MN Is Already on the Market While Key Human Evidence Is Still Missing
Nicotine analogues such as 6-methylnicotine are already appearing in e-cigarettes and oral pouches, even as key human evidence remains limited. A new Nixodine-S study adds nonclinical data showing differences from nicotine in cytotoxicity and receptor activity, while independent studies point to a more complex toxicological picture. With supply-chain activity growing and FDA seeking clearer authority over nicotine analogues, the industry now faces a larger question: what evidence is needed before these substances can credibly replace nicotine?
SCIENCE
Sep.23
China Discloses First Criminal Case Over Counterfeit Vapes Disguised as “Medical Nebulizers” and “Zero-Nicotine” Products
China Discloses First Criminal Case Over Counterfeit Vapes Disguised as “Medical Nebulizers” and “Zero-Nicotine” Products
Chinese authorities have disclosed the country’s first reported criminal case involving counterfeit vapes marketed as “medical nebulizers” and “zero-nicotine” products. Authorities determined that the products involved were counterfeit vapes and pursued criminal charges for producing and selling counterfeit goods. According to the report, the case resulted in the seizure of 347,000 counterfeit vape pods and 53,700 vape devices, with physical goods valued at 22.13 million yuan.
Aug.04
Scottish Vape Display Rules Could Cost Businesses £61 Million, Affecting More Than 11,000 Retail Outlets
Scottish Vape Display Rules Could Cost Businesses £61 Million, Affecting More Than 11,000 Retail Outlets
A Scottish government impact assessment estimates that proposed vape display and packaging rules could create up to £61 million ($82 million) in compliance costs for businesses, affecting more than 11,000 retail outlets. The estimated costs are mainly linked to inventory adjustments, retail storage changes and the resources required for businesses to understand and implement the new requirements. The measures form part of the UK’s broader efforts to tighten vape regulation, particularly around product displays, packaging and sales practices.
Aug.10
Malaysia Police Seize RM12.7 Million in Illegal Vapes and Cigarettes as Probe Points to Sea Shipments From China
Malaysia Police Seize RM12.7 Million in Illegal Vapes and Cigarettes as Probe Points to Sea Shipments From China
Police in Malaysia’s Selangor state seized illegal vape products and contraband cigarettes worth about RM12.7 million (approximately $3 million) in two enforcement operations. According to New Straits Times and The Star, the vape-related operation uncovered 131,036 boxes of vape products, 4,900 bottles of e-liquid and 25,510 vape devices, valued at about RM9.4 million. Police said preliminary investigations indicated that some illegal vape products entered Malaysia through sea shipments from China before moving through storage and distribution networks.
Aug.10
Product | RELX Partners With UK E-Liquid Brand T-Juice for Prime Pro × Red Astaire Bundle in France
Product | RELX Partners With UK E-Liquid Brand T-Juice for Prime Pro × Red Astaire Bundle in France
RELX and UK e-liquid brand T-Juice have launched the Prime Pro × Red Astaire bundle in France, combining the RELX Prime Pro open-system pod device with T-Juice’s signature Red Astaire nicotine salt e-liquid. The collaboration retains the existing Prime Pro hardware platform while using an established flavor brand to create a complete open-system offering. The product appeared in French retail and distribution channels in August 2026 and represents a co-branded retail bundle rather than a new device launch.
Aug.27