E-Liquid Business Takes On FDA In Legal Battle To Halt Deeming Regs

Guy Bentley | Research Associate, Reason Foundation

A Los Angeles e-liquid business is taking the Food and Drug Administration (FDA) to court over regulations that could see 99 percent of the e-cigarette industry put out of business.

Lost Art Liquids, which sells e-liquid across the US and overseas, filed a lawsuit Thursday against the FDA in the Central District of California. The company’s suit challenges the FDA’s authority to regulate vapor products as “tobacco products” under the Tobacco Control Act of 2009. (RELATED: FDA Announces Rule To Ban 99 Percent Of E-Cigarettes)

Lost Art Liquids claims the FDA violated the Regulatory Flexibility Act, the 1st and 5th Amendments, and the Administrative Procedures Act.

“Lost Art Liquids is and has always been committed to producing the highest quality, safest, and most innovative premium e-liquid products and in serving as a voice for the vapor community. FDA, with its deeming regulation, has ignored our voice and the voices of millions of others, leaving us no choice but to seek judicial relief,” said Brian Worthy, CEO of Lost Art Liquids in a press release.

“We are disappointed that the FDA continues to confuse and conflate vapor products with tobacco and chooses to ignore years of well-established research that shows the relative safety of the products compared to combustible cigarettes and the public health benefit they may offer to millions of Americans who use them as an alternative to tobacco.”

The company’s lawsuit alleges the FDA’s regulation of vapor products is illegal because it goes beyond the scope of authority Congress gave FDA to regulate “tobacco products” in 2009.

“Vapor products are technology products, not tobacco products,” said Ryan Thomas, Lost Art Liquids’ Co-Founder and COO. “The legislative history and factual findings that serve as the predicate to the Tobacco Control Act make clear that Congress never intended to give FDA authority to regulate vapor products when it enacted the Tobacco Control Act in 2009. It was created to regulate products like cigarettes and smokeless tobacco, not vapor,” he added.

“FDA has introduced one of the most burdensome, misguided and harmful regulations in its history without adequately sound science, or adhering to required, lawful procedures. These regulations will harm Lost Art Liquids’ business and customers by eliminating vapor products from the market, forcing consumers to resort to more harmful products like cigarettes and cigars,” added Thomas.

Lost Art Liquids follows Nicopure Labs LLC who filed a lawsuit against the FDA May 10 in the federal district court in Washington. (RELATED: E-Cigarette Company Sues FDA To Save Industry From Prohibition)

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