Judge smacks FDA’s hand away from e-cigarettes

In a 32-page opinion, U.S. District Judge Richard J. Leon said the Food and Drug Administration’s authority doesn’t extend to e-cigarettes.

Judge Leon says the devices don’t qualify as subject to the agency’s regulation, a coup for e-cigarette distributors Smoking Everywhere and Njoy. While the smoking alternatives haven’t caught on massively yet, e-cigarettes have many devoted users who will be pleased at the news they won’t have to return to “analogs” just yet. Critics complain that the devices haven’t been proven safe and might encourage children to smoke, the same logic used to ban clove cigarettes last year and pretty much curb smoking anywhere and everywhere.

The FDA has seized shipments of the devices in the past, citing increased powers over “tobacco marketing.” The devices, however, contain no tobacco, delivering nicotine in a smoke-free water vapor. Judge Leon chided the agency for the action:

He criticized what he called the FDA’s “tenacious drive to maximize its regulatory power,” saying he found its interpretation of the law “unreasonable and unacceptable.”

While groups like the American Lung Association seek to ban the e cigarette, it’s been proven time and again smokers will continue to smoke even if cigarettes spike to $100 a pack and become twice as cancer-causing. Although nicotine consumption clearly upsets them, removing from the market a popular alternative that doesn’t emit secondhand smoke seems like throwing the baby out with the bathwater.

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