Nicopure and Right to be Smokefree coalition denied summary judgement

Nicopure and Right to be Smokefree coalition denied summary judgement

Case brought by key vaping industry players fails to overturn deeming regulation.

In a setback for an industry fighting for its survival, D.C. District Judge Amy Berman Jackson ruled against the e-liquids manufacture Nicopure Labs LLC and upheld the FDA's rule regulating vapes as tobacco products last week.

"In the Deeming Rule, the FDA simply announced that electronic cigarettes, or electronic nicotine delivery systems would be subject to the same set of rules and regulations that Congress had already put in place for conventional cigarettes," she wrote in her opinion.

The judge dismissed plaintiffs request for a summary judgement but, crucially, agreed with plaintiffs that they had standing to challenge the rule and that the case was ripe for adjudication, paving the way for a possible appeal.

Read the full decision here.

"We are still reviewing Judge Jackson's opinion," said Gregory Conley, president of the American Vaping Association (a plaintiff in the case). "The legal and legislative processes are both long roads with plenty of bumps along the way. The fight to save vaping is far from over." Attorney Azim Chowdhury, representing the Right to be Smoke-Free Coalition, said in a tweet that they are considering appeal options.

The case is one of a number of different cases on the deeming rule slated to appear before federal courts. Another case, files by Lost Art vapes in the Federal Court of Los Angeles, is still to be heard. This may have a different outcome according to Counsel for the company, Phil Daman.

"We are hopeful that we will have a more favorable result which is better for the industry, as our case and litigation strategy has some nuances which may prove successful", said Daman.

"Additionally, I believe it is important to have highly focused legislative outreach during this crucial time for the industry. It is necessary to have significant grassroots supper if we expect to have an impact in convincing legislators and agency officials that vapor products should not be regulated as contemplated by the current deeming regulations.

Keep in mind that the [opinion in the DC case] is only one opinion, from one court, in one jurisdiction- albeit a significant one".

Indeed, lawyers for the Center for Tobacco Free Kids - a lobby group which opposes vaping and supports the FDA's deeming rule - appear to be getting nervous that the Trump administration might choose not to mount a vigorous defense of the Obama-era.

The Center had joined six other public health organizations, including the American Academy of Pediatrics and the American Heart Association, to oppose vaping community efforts to overturn the 2016 FDA rule. The organizations believe the Trump administration may side with industry to weaken or rescind the rule. They propose to defend the rule in Court if the administration chooses not to, and have filed a motion with the Court which, if passed, would allow them do do exactly that.

Peter Beckett is MD of Beckett Associates

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