Electronic cigarette imports on hold

By: Dave Ress | Richmond Times Dispatch
Published: February 03, 2010

A federal appeals court has put on hold a lower court ruling allowing electronic cigarettes to be imported.

The U.S. Court of Appeals for the District of Columbia Circuit stayed a lower court order banning the U.S. Food and Drug Administration from seizing the devices when they enter the country.

Electronic cigarettes, also known as "e-cigarettes," are devices that heat and vaporize small amounts of nicotine, the addictive substance in tobacco. They contain no tobacco, however.

The FDA had seized shipments of e-cigarettes beginning in 2008 as illegal drug-delivery devices.

The importers, Smoking Everywhere Inc. and Sottera Inc., had argued that the FDA lacked the authority to do so because of a 2000 Supreme Court ruling that the FDA lacked the power to regulate cigarettes and tobacco as drugs or devices.

The lower court judge, Richard J. Leon of the U.S. District Court in Washington, granted a preliminary injunction last month barring the FDA from stopping e-cigarette imports.

Leon said he did not see an immediate threat to public health from the e-cigarettes.

In appealing Leon's injunction, the FDA noted that nicotine is addictive and toxic.

The agency also said that last year's federal law giving it the power to regulate tobacco products did not prevent it from regulating drug devices that deliver nicotine.

A panel of three appeals court judges temporarily stayed the lower court ruling in order to give them more time to consider the FDA's arguments that it should overturn Leon's injunction.

Contact David Ress at (804) 649-6051 or dress@timesdispatch.com.