Over the last few weeks, the vapor industry plaintiffs and a number of supporters have filed briefs in an appeal of a decision upholding the FDA’s Deeming Regulations. On July 21, 2017, a federal district court rejected the industry plaintiffs’ challenge, and the case is now on appeal to the U.S. Court of Appeals for the D.C. Circuit.
In the plaintiffs’/appellants’ brief filed on February 12, Nicopure Labs and the Right to be Smoke-Free Coalition focus on the First Amendment free speech implications of the Tobacco Control Act’s Modified Risk Tobacco Product (“MRTP”) requirements and the FDA’s ban on free samples of electronic nicotine delivery systems (“ENDS”). The brief argues that the MRTP requirement violates the First Amendment because it prohibits truthful, non-misleading statements (for example, that ENDS do not produce smoke) without the FDA’s advance permission. The brief argues that the sampling ban violates the First Amendment by prohibiting expressive activity that allows consumers to make purchasing decisions.