Published: January 14, 2010
Judge Richard J. Leon of
The distributors say the vapor contains virtually none of the cancer-causing chemicals of traditional cigarettes, but the F.D.A. says it has not been proved safe.
“This case appears to be yet another example of F.D.A.’s aggressive efforts to regulate recreational tobacco products as drugs or devices,” Judge
With the passage of landmark tobacco legislation last year, he added, the Food and Drug Administration’s new tobacco division will be able to regulate the contents and marketing claims of e-cigarettes in the same way it is about to begin regulating traditional tobacco products. But the agency’s drug division cannot ban the devices, the judge ruled.
The Food and Drug Administration issued a brief statement: “The public health issues surrounding electronic cigarettes are of serious concern to the F.D.A. The agency is reviewing Judge
Ray Story, vice president of Smoking Everywhere, a
“The public will have a much less harmful alternative to tobacco products,” Mr. Story said. “Wherever they’re sold, we are going to be sold.”
Jack Leadbeater, chief executive of Sottera, an
Mr. Leadbeater, chairman of the Electronic Cigarette Association, estimated that the products were a $100 million business nationwide.
Matthew L. Myers, president of the antismoking advocacy group Campaign for Tobacco-Free Kids, said the ruling opened “a gaping loophole” in the F.D.A.’s ability to regulate non-tobacco products containing nicotine.
He said the judge’s decision “ignores the common sense distinction” the F.D.A. has long drawn between traditional tobacco products like cigarettes and cigars and “a host of non-tobacco products, ranging from toothpaste to lollipops to water, in which manufacturers have added nicotine, a highly addictive substance.”
Mr. Myers’ organization and other health groups had promoted legislation to give the Food and Drug Administration authority to regulate tobacco products. But he said the law, signed by President Obama last June, was intended for traditional tobacco products, not electronic ones where nicotine levels and flavors could be easily adjusted.
Mr. Myers said e-cigarettes posed several potential serious risks to public health, including lack of controls on potency, a means to discourage current smokers from quitting by providing an alternative in smoke-free spaces and the possibility “these products could serve as a pathway to nicotine addiction for children.”
The plastic tubes, shaped like cigarettes, have a heating element to vaporize a refillable liquid nicotine mixture. They have electronics to monitor air flow so that when a user inhales, the device delivers a vapor with a taste and feel that the distributors say simulates cigarette smoke.
Traditional cigarette makers have not been involved in the fledgling industry.
Correction: January 16, 2010
An article on Friday about a federal judge’s ruling that the Food and Drug Administrationcould no longer block imports of electronic cigarettes from China paraphrased incorrectly from a statement released by Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, about the decision. Mr. Myers said the ruling opened a loophole in the F.D.A.’s ability to regulate nontobacco products containing nicotine. He did not say it opened a loophole in the new federal law that gives the F.D.A. authority to regulate tobacco products.