understandingpolitics.org

On Thursday January 14th, 2010, Richard J. Leon, a Federal Judge, announced that he will allow the two distributors of the e-cigarettes, NJOY and Smoking Everywhere, a temporary injunction against the FDA which was detaining all importations of the e-cigarettes. The judge even went so far as to refer to the FDA’s action as “bootstrapping run amuck”. The Judge has instructed that the FDA release all shipments that have been detained, and that order will remain in effect until the trial, currently underway between the FDA and Smoking Everywhere, comes to a conclusion.

The basis of the FDA’s claim, in early 2009, is that the e-cigarette should be considered a drug, that it was not safe for its intended purposes, and as such will fall under its jurisdiction to legislate. Smoking Everywhere immediately sued the FDA claiming its e-cigarette to be a tobacco product, so it did not fall under the jurisdiction of the FDA. NJOY immediately joined the lawsuit after the FDA started to hold its imports of the e-cigarette.

Adding a strange twist to this, President Obama brought into law a new tobacco control act that essentially gives the FDA the jurisdiction to regulate all tobacco products. Since the distributors are claiming the e-cigarette to be a tobacco product, it is likely that it too will be severely regulated.

So, at this time, the legal status of the e-cigarette is that its importation has been allowed to continue, the product is completely legal in the US, and it cannot be claimed to stop smoking. Whether it will be considered a drug, as the FDA contends, or is considered a tobacco product, remains to be seen when the court case between Smoking Everywhere and the FDA comes to its conclusion.