Electronic Cigarette | the SMOKeFREE

A Florida company that imports and distributes so-called electronic cigarettes filed suit yesterday against the Food and Drug Administration, claiming the agency is illegally blocking imports of its product into the United States.

The suit, filed by Smoking Everywhere in the U.S. District Court for the District of Columbia, argues that the FDA has overstepped its regulatory authority by banning shipments of the devices and insisting they need to go through the drug approval process.

Electronic cigarettes — often marketed as “e-cigarettes” — are a tobacco-free version of traditional smokes. Users inhale vaporized nicotine from a small, plastic tube that heats up with the help of a tiny battery. The whole contraption is designed to look and feel like a normal cigarette, minus the flame and smoke, and their makers market them as a risk-free way to get a nicotine buzz.

Smoking Everywhere’s lawyers from Thompson Hine point out that in 2000, the Supreme Court ruled that the FDA did not have the power to regulate ordinary cigarettes. Therefore, it shouldn’t be allowed to clamp down on their high tech counterparts, the lawyers argue.

“There are a series of laws and regulations pertaining to the advertising and distribution of regular cigarettes that we believe are more appropriate for this particular product, and those laws and regulations are largely administered by the Federal Trade Commission,” says Walt Linscott, an Atlanta-based partner at Thompson Hine.

Congress is currently considering the Family Smoking Prevention and Control Act, which would give the FDA explicit power to regulate cigarettes. Linscott notes that the law would probably give it the right to oversee e-cigarettes as well.

The case is being heard by Judge Richard Leon. The FDA did not return requests for comment.