The items that most concern those here are, from the case, "open-system vaping devices". Closed-system devices defined as "battery-powered products that allow users to inhale nicotine vapor without fire, smoke, ash, or carbon monoxide" were already held to be covered by the order in a previous case in the DC Circuit. This case was about the open-system vapes.
The key argument of the plaintiffs:
And the agency suggests that
the Court should not be swayed by what it sees as a change in position by the industry:
Having insisted in Sottera that e-cigarettes are regulable as tobacco
products, manufacturers cannot now avoid that conclusion simply by
making their products refillable. Indeed, while the question presented in
Sottera was whether e-cigarettes should be regulated as drugs/devices or
instead as tobacco products, the choice Plaintiffs offer here is markedly
different: whether refillable e-cigarettes should be regulated as tobacco
products, or, as Plaintiffs urge, not at all.
Id. at 24–25. But plaintiffs have conceded that most ENDS products may be lawfully regulated
under the TCA, and notwithstanding Sottera, the Court must go on to utilize the Chevron analysis
to determine, as a matter of first impression, whether the agency has interpreted the statute
properly.
A "Chevron analysis" is a procedure where the courts look to regulations in two steps in order to see if the regulation should be given deference. (Where the court goes by enforcing agency decisions unless they are plainly unreasonable.) Guess how the analysis came out here.
Early decisions by the agencies and two courts are making it clear we should start planning for FDA regulation of much of the kit used here.
The court's theory of why some should not worry:
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.
Um...hmm. That is certainly good news for us, right? In a case to see if things that have nothing to do with tobacco or nicotine products are covered by rules for tobacco and nicotine products, we are assured by the court that we shouldn't worry because--reasons. That being said, the courts have long ago given up against the regulatory state. There are few regulations they don't like--even if there is little rational basis for making the regulation. It is not going to get better in our lifetimes.
![:\](/i/s/hmm.gif "Hmm :\")
