In May 2016, the Food and Drug Administration (FDA) announced a rule declaring that e-cigarettes should be regulated like other tobacco products. Through this rule, the FDA exercised its discretion to deem e-cigarettes to be “tobacco products” subject to the set of federal laws that govern the promotion and marketing of conventional cigarettes. The so-called “Deeming Rule” has been a major point of contention for vaping companies that argue e-cigarettes are not tobacco products and any regulations on e-cigarettes act like a ban that will destroy the industry.
Recently, the U.S. District Court for the District of Columbia upheld the FDA’s authority to issue the rule. In Nicopure Labs, LLC v. FDA, consolidated with Right to Be Smoke-Free Coalition v. FDA, the plaintiffs challenged the rule. Nicopure claimed the rule violates its First Amendment rights because the rule’s restriction on modified-risk statements prohibits manufacturers from making truthful and non-misleading statements about their products. Likewise, Nicopure claimed that the ban on the distribution of free samples violates Nicopure’s right to free speech. Nicopure called for “disclaimers” for e-cigarettes rather than the strict tobacco-like regulations. The court declined that invitation, stating that “Permitting manufacturers to make unsubstantiated statements concerning modified risk tobacco products, whether express or implied, even if accompanied by disclaimers would be detrimental to the public health.”