The tobacco industry is retaliating against restrictions imposed by the U.S. Food and Drug Administration (FDA), by ensuing the vaping industry is not in an advantageous position.
It comes as no surprise, that tobacco companies would be unhappy about the fact that the vape industry, which they hoped would be decimated by the costly PMTA process, may still be thriving.
The parent company of Marlboro, Altria Group, has just announced that its vape brand, NJOY, has filed a lawsuit against 34 vape manufacturers in a California court. These include both local and foreign brands, and include popular ones such as Elf Bar, Esco Bar, and Puff Bar. The lawsuit accuses these companies of bypassing California’s flavour ban, hence putting themselves in an advantageous position and being unfair competition against businesses who are complying with the ban.
NJOY is one of the few vape manufacturers which has received the infamous PMTA (premarket tobacco product application) by the FDA, a process which is known to be so costly that only the ultra rich companies, such as tobacco companies, were able to afford. Hence it comes as no surprise, that these companies would be unhappy about the fact that the vape industry, which they hoped would be decimated by this process, may still be thriving.
In its lawsuit, NJOY seeks a nationwide injunction against the import, marketing, and sale of the products in question, in addition to seeking compensatory and punitive damages. NJOY also indicated that in the near future it may add more vape manufacturers to the lawsuit.
BAT has filed a similar complaint
This legal action by NJOY follows a similar complaint by British American Tobacco (BAT), which recently filed a complaint with the U.S. International Trade Commission. BAT’s complaint alleges that several manufacturers and retailers of popular disposable vapes have been unlawfully importing the products.
The rise of disposable vape brands, some of which are allegedly being imported and sold illegally, has presented significant challenges for the FDA. The agency has struggled to effectively regulate these products, which have gained a significant share of the market. Notably, last December, the U.S. Supreme Court ruled that California could enforce a voter-approved ban on flavoured tobacco products, even in the face of legal challenges from the tobacco industry, which argued that the state policy conflicted with federal laws.
The FDA has just banned BAT’s Vuse Alto menthol and fruit-flavoured vapes
Meanwhile, the FDA recently announced a ban on the sale of Vuse Alto menthol and fruit-flavoured electronic cigarettes. Vuse, is produced by another tobacco company: R.J. Reynolds Vapor Co., of which the parent company is BAT. Reports have shown that it is the most widely sold vape brand in the US, with Vuse Alto being its most popular sub-brand.
The FDA’s ban targeted specifically three menthol-flavoured and three mixed-berry-flavored products, each available in three different nicotine strengths. As a result of this ban, R.J. Reynolds is prohibited from marketing or distributing these products across the U.S., although they have the option to submit a new regulatory application.
The FDA’s decision came after it allegedly determined that the company failed to provide evidence that keeping these products on the market would serve the best interests of public health. Specifically, R.J. Reynolds did not demonstrate that the benefits of these flavoured products for adults outweighed the known risks they posed to young people.
This move on the FDA’s part followed findings from the 2022 National Youth Tobacco Survey, indicating that Vuse was the second most commonly used vape brand used by minors. Yet so far the FDA’s decision pertains to the flavoured Vuse products, and the agency has not yet confirmed whether Vuse Alto’s tobacco-flavored vapes will be allowed to remain on the market.
In response to the FDA’s decision, BAT expressed its intent to challenge the Marketing Denial Orders and seek a stay of enforcement. The tobacco company argued that the ban contradicts scientific evidence and the FDA’s stated goal of reducing the health impacts of tobacco use.