U.S. FDA files new appeal in e-cigarette lawsuit..

December 22, 2010 - The US Food and Drug Administration (FDA) on Monday, December 20, 2010 filed a petition to ask the entire U.S. Court of Appeals for the District of Columbia (DC) Circuit to hold a new hearing and review the FDA’s appeal, which was rejected December 7, 2010 by a three-judge panel.

The three judges of the U.S. Court of Appeals for the D.C. Circuit in their opinion said the FDA can only regulate e-cigarettes as a tobacco product. The ruling means the government can oversee the marketing of the products, not restrict their sale. (Federal Court of Appeals - e-cigarettes - rules against the FDA..)

The appeals panel upheld a January ruling by a district judge, who granted a preliminary injunction to the e-cigarette distributors who sued the FDA. (U.S. FDA appealing a federal judge's ruling on e-cigarettes..)

At issue is how the FDA should regulate a nascent (coming into existence; emerging) industry whose products have caught on with thousands of smokers who are seeking an alternative to their daily habit. E-cigarettes are battery-powered tubes that turn nicotine-filled liquid into a vapor mist.

On Monday, the agency asked the full appellate court to reinstate a stay of the preliminary injunction, pending its request for a rehearing of the case. In its court papers, the FDA argues that the three-judge panel’s decision “rests on a clear error of law and will undermine” objectives that were laid out by Congress when it passed legislation in 2009 that empowered the FDA to regulate tobacco products for the first time.

The e-cigarettes industry’s annual sales are estimated at more than $100 million.

e-cigarettes = electronic nicotine delivery systems (ENDS)

Reference: FDA Files New Appeal in E-Cigarette Lawsuit, Tobacco World, 12/22/2010.