Lost Art vs FDA Update 7/26/17


Last Friday, July 21st 2017, The United States District Court in the District of Columbia published a 93 page opinion in the cases brought against FDA by our friends at Nicopure and The Right to be Smoke Free Coalition. As you may know, these entities through their attorneys, challenged the deeming regulation as applied to ENDS products.

The US District Court for DC is a trial court, and in the ruling, upholds the deeming regulation. Our legal team suspect this case will be going up for appeals but have not yet spoken with counsel for these Plaintiffs.

While we are still reviewing the opinion in its entirety, the two paragraphs below provide some insight that may be valuable to vapers and stakeholders such as manufacturers, distributors, and retailers in the industry:

"The Court consolidated the two cases, Order (June 28, 2016) [Dkt. # 19], and both sides have filed motions for summary judgment. After considering the record, the points and authorities set forth in the briefs submitted by both sides and the amici, and the arguments presented at a hearing on the motions, the Court will uphold the Deeming Rule.3
The Court wishes to reassure the many worried vapers who followed these proceedings closely that this case is not about banning the manufacture or sale of the devices. That is not what the Deeming Rule does or what it was intended to accomplish. In the Deeming Rule, the FDA simply announced that electronic cigarettes, or electronic nicotine delivery systems (“ENDS”) would be subject to the same set of rules and regulations that Congress had already put in place for conventional cigarettes."


As many of you know, Lost Art Liquids has filed a separate lawsuit against FDA in federal court in Los Angeles, challenging the deeming regulation. We are hopeful that we will have a more favorable result which is better for the industry, as our case and litigation strategy has some nuances which may prove successful.

Additionally, we believe it is important to have highly focused legislative outreach during this crucial time for the industry.

It is necessary to have significant grassroots support if we expect to have an impact in convincing legislators and agency officials that vapor products should not be regulated as tobacco products.

Simultaneously, we must push forward in the courts, and in multiple jurisdictions, so that there is a split of authority across the country.

Please keep in mind that the attached opinion is only one opinion, from one court, in one jurisdiction- albeit a significant one.

We expect and hope that better results can be achieved throughout the country.

Please let us know if you would like to help in the legislative, grassroots or litigation efforts, or to discuss any of the above further.





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