On Tuesday, a federal appeals court in the District of Columbia ruled 3-0 that the FDA’s proposed restrictions on vaping and e-cig advertising does not violate the First Amendment. The case in question, Nicopure Labs, LLC v. FDA claimed that the FDA’s attempts to regulate vaping and e-cig advertising in 2016 violated an e-cig company’s free speech, as the company claimed that e-cigs were healthier alternatives to tobacco cigarettes, and companies do not require federal approval to make factually based claims.
“The First Amendment does not bar the FDA from preventing the sale of e-cigarettes as safer than existing tobacco products until their manufacturers have shown that they actually are safer as claimed,” wrote US Circuit Judge Cornelia Pillard in the court’s opinion.
The court added that the FDA could restrict e-cig advertising since nicotine vapes “are indisputably highly addictive and pose health risks, especially to youth, that are not well understood.”
The ruling, however, was likely heavily influenced by another widespread health crisis, known as EVALI or VAPI, a severe and deadly lung injury that has killed dozens and hospitalized thousands more.
What does the ruling mean for America’s vapers? Under 2009’s Family Smoking Prevention and Tobacco Control Act, Congress gave the FDA the sole authority to regulate tobacco products in the US. Those powers included restrictions on how tobacco companies could market their products, including requirements for all tobacco brands to list health warnings on their packages.
So, it’s likely that vape companies will soon have to include warning stickers on their products. And the FDA’s proposed ban on flavored vapes, pushed by President Trump, may arrive sometime in the next year. After all, the Tobacco Control Act banned flavored tobacco cigarettes in 2009.
While some evidence suggests vaping can be much safer than smoking or chewing tobacco, there haven’t been many studies on the long-term effects of vaping. Some studies indicate vaping nicotine can be more addictive than smoking tobacco, and e-cigs could compromise cardiovascular health in similar if not worse ways than traditional cigarettes.
Additionally, the rising cases of EVALI in the US have concerned lawmakers and regulatory agencies, leading some states such as Oregon and Massachusetts to enact bans on vape sales, with varying degrees of success. Health authorities still haven’t determined what causes EVALI, but reports indicate that the lung illness could be due to using black market or legal vaping devices.
In fact, the surge in teens using vape products, as well as the EVALI health crisis, prompted the American Medical Association, the nation’s largest medical organization, to call for an outright ban on all e-cigs and vaping products on Tuesday, as well.
"I would be 100% with the AMA if they were seeking a ban on all tobacco products that are smoked, including e-cigarettes," said Jonathan Foulds, a tobacco addiction researcher at Penn State University, to NBC Los Angeles. "But right now, nicotine electronic cigarettes are competing with and replacing the most harmful legal product in this country."
How far the FDA can regulate the vaping industry remains to be seen. Under the Tobacco Control Act, all tobacco manufacturers are required to list their products’ ingredients, and warning labels must cover half of packaging. Additionally, the FDA has banned all online sales of tobacco products, and Tuesday’s ruling suggests the FDA could pass a similar ban on online vape sales, too.
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