Judge smacks FDA's hand away from e-cigarettes

Kim LaCapria

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."