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WASHINGTON -- The Food and Drug Administration is taking another shot at regulating electronic cigarettes. On the heels of a ruling earlier this month rejecting the federal agency’s bid to regulate e-cigarettes, the FDA has filed an appeal with the entire U.S. Court of Appeals for the District of Columbia Circuit.
At the heart of the matter is how the FDA should regulate the fairly new industry whose products have caught on with smokers who are looking for an alternative to their daily habit, according to The Wall Street Journal. On Dec. 7, a three-judge appellate panel ruled that the FDA should regulate e-cigarettes as tobacco products unless they are marketed with specific claims that the devices help smokers quit or provide other remedies.
For its part, the FDA argues that e-cigarettes are drug or medical devices that require preapproval from the agency -- similar to nicotine gums, patches or sprays. Two years ago the FDA began intercepting e-cigarette shipments from China, sparking a lawsuit by the industry. In January 2010 a district judge granted a preliminary injunction to e-cigarette distributors who sued the FDA; the appellate panel upheld this ruling.
In its Dec. 20 filing the FDA requests that the full appellate court reinstate a stay of the preliminary injunction, pending a request for a rehearing of the case, the Journal reported. In the appeal, the agency also argues that the three-panel’s decision "rests on a clear error of law and will undermine" objectives that were laid out by Congress when it passed legislation that empowered the FDA to regulate tobacco products.