Smoking Everywhere, Inc. v. U.S. Food and Drug Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SMOKING EVERYWHERE, INC., )
)
Plaintiff, )
)
and )
)
SOTTERA, INC., d/b/a NJOY, )
)
Intervenor-Plaintiff, )
)
v. ) Civil Case No. 09-771 (RJL)
)
U.S. FOOD AND DRUG )
ADMINISTRA TION, et aI., )
)
Defendants. )

tv-
MEMORANDUM OPINION
(January H, 2010) [# 2 and 24]

Plaintiff, Smoking Everywhere, Inc. ("Smoking Everywhere"), and intervenor-

plaintiff, Sottera, Inc., which does business as "NJOY" ("NJOY") (collectively,

"plaintiffs"), are distributors of a product known as "electronic cigarettes" or "E-

cigarettes." They claim that inbound shipments of their products from overseas

manufacturers have been denied entry into the United States, or have otherwise been

detained, by order of the Food and Drug Administration ("FDA") on the ground that

electronic cigarettes are an unapproved drug-device combination under the Food, Drug,

and Cosmetic Act ("FDCA"), 21 U.S.C. §§ 301 et seq. Plaintiffs seek a preliminary
injunction against the FDA and Commissioner Margaret Hamburg, as well as the U.S.

Department of Health and Human Services and Secretary Kathleen Sebelius (collectively,

"FDA"), 1 enjoining FDA from regulating electronic cigarettes as a drug-device

combination and from denying entry of those products into the United States. As such,

this case raises for the first time the issue of whether FDA has the authority under the

FDCA to regulate electronic cigarettes as a drug-device combination. For the following

reasons, the Court concludes that it does not and therefore GRANTS plaintiffs' motions.

FACTUAL BACKGROUND

I. Electronic Cigarettes

Smoking Everywhere describes "electronic cigarettes" as "an alternative to

traditional smoked tobacco products" that is "designed to replicate the adult experience of

smoking without combustion or the use of cancerous by-products." (Smoking

Everywhere Complaint [# 1] at ,-r 8). They function by vaporizing a liquid nicotine

mixture that is derived naturally from tobacco plants. (Id.). Once the nicotine mixture is

vaporized, the user inhales the vapor in much the same way that a traditional smoker

would inhale tobacco smoke, except "without the fire, flame, tar, carbon monoxide,

I Among the original named defendants in this suit were Joshua M. Sharfstein,
Acting Commissioner of the FDA, and Charles E. Johnson, Acting Secretary of Health
and Human Services. Pursuant to Federal Rule of Civil Procedure 25(d), if a public
officer named as a party to an action in his official capacity ceases to hold office, the
Court will automatically substitute that officer's successor. In this case, Joshua Sharfstein
and Charles Johnson no longer serve as the acting heads of their respective agencies.
Accordingly, the Court removes them as defendants in this lawsuit.

2
known cancerous substances, ash, stub, or smell found in traditional cigarettes." (Id).

Electronic cigarettes have three basic components that are designed to resemble an actual

cigarette: the cartridge, the heating element (also known as the atomizer), and electronics

plus a battery. (Jd. at ~ 9). The cartridge, a plastic container that holds a mixture of

propylene glycol and liquid nicotine, serves as the mouthpiece of the electronic cigarette.

(Id). The heating element vaporizes the liquid nicotine mixture, and the electronics

power the heating element and monitor the air flow. (Jd). When a user inhales from the

cartridge, the electronics detect the flow of air and then activate the heating element,

which vaporizes the nicotine mixture. (Jd. at ~ 10). The vapor, which the user inhales,

contains a flavor that simulates the taste and feel of tobacco. (Jd.). Simply stated, the

electronic cigarette is designed to look and to be used just like a traditional cigarette.

Smoking Everywhere is a distributor that imports electronic cigarettes from

overseas manufacturers. (Id at ~~ 7, 12). It derives all of its revenue from the

importation and sale of electronic cigarettes, its sole product line. (Jd at ~ 12). Since its

founding over a year ago, it has imported and sold more than 600,000 units. (Jd. at ~ 7).

Smoking Everywhere markets its electronic cigarettes as an alternative to traditional

cigarettes that delivers the same sensation as smoking. Its promotional materials state, for

example: "[ e]ach cartridge is equivalent to 20 traditional cigarettes"; "[t]he taste of the

Smoking Everywhere cartridge resembles that of tobacco"; "Smoking Everywhere E-

Cigarette has been designed to look and feel like a traditional cigarette"; "[i]t looks like a

3
real cigarette, feels like a real cigarette and tastes like a real cigarette, yet it isn't a real

cigarette"; "Smoking Everywhere E-Cigarette ... gives the users the feeling they get

when they smok[e] real cigarette[s]"; "Smoking Everywhere E-Cigarette will provide

smokers the same delight, physical and emotional feelings they get in smoking traditional

cigarettes"; "[t]his is what the smoker gets, the nicotine hit that smokers crave"; and

'" [e]lectronic cigarette' is a kind of non-flammable electronic cigarette with similar

functions to those of a common cigarette which is to refresh smokers and satisfY their

smoking addiction, thus making them happy and relaxed." (Administrative Record of

Detention and Refusal ("AR DET") 28, 35, 39,41,49,51,56). Smoking Everywhere

also markets its electronic cigarettes as a healthier alternative to traditional cigarettes. For

example, customer testimonials on its website proclaim: "1 thought [E-cigarette] was a

great alternative to help me stop smoking real cigarettes"; "I've been smoking real

cigarettes for over 20 years and really wanted to stop because it was damaging my lungs .

. . I've been using [E-cigarettes] for 3 weeks now and feel great"; and "[t]here is less

health risk, and 1 can smoke anywhere and everywhere." (AR DET 21). Smoking

Everywhere's promotional materials also state that E-cigarettes are "cheaper and healthier

than real cigarettes," that they offer "smokers a chance of smoking in a much healthier

way," and that "smokers still get their nicotine, but don't get any harmful side effects of

smoking traditional cigarettes." (AR DET 39, 49).

4
 NJOY, an intervenor-plaintiff in this case, is also in the business of importing and

distributing electronic cigarettes. (NJOY Complaint [#22] at,-r 1). Since it began selling

electronic cigarettes in early 2007, NJOY has sold at least 135,000 units in the United

States. (Id. at,-r 13). NJOY markets its electronic cigarettes only for "smoking pleasure"

as an alternative to conventional cigarettes. (NJOY Complaint [#22] at,-r 1). It claims not

to make therapeutic representations. (Id.). Indeed, NJOY labels its products with a

disclaimer that states, for instance: "NJOY products are not a smoking cessation product

and have not been tested as such." (Declaration of John Leadbeater ("Leadbeater Decl.")

[#24-1] at,-r 9 (internal quotation marks omitted)).

II. The Refused Shipments

This action arises from FDA's decision to detain multiple inbound shipments of

electronic cigarettes belonging to Smoking Everywhere and NJOY. In the case of

Smoking Everywhere, FDA issued a "hold" on two shipments that arrived at Los Angeles

International Airport in late September 2008. (AR DET 59-60). On October 29, 2008,

FDA issued notices of "Detention" on the ground that the shipments "appear to be

adulterated, misbranded or otherwise in violation" of the FDCA. (AR DET 78-79, 80-

81). After an exchange of information about the shipments between FDA and Smoking

Everywhere, FDA issued a "Correspondence" on December 23,2008, stating its

conclusion that '''Smoking Everywhere E-Cigarette' and its component parts appear to be

intended to affect the structure or function of the body, and to prevent, mitigate, or treat

5
the withdrawal symptoms of nicotine addiction." (AR DET 97-98, 100-01). Thus,

according to FDA, the product appears to be an unapproved drug-device combination

under the FDCA. (ld.). FDA reiterated this view in follow-up correspondence from a

compliance officer to a representative of Smoking Everywhere:

We believe that when originally offered for importation, this product was
explicitly labeled and promoted for "drug" use. In addition, ... this product
is clearly intended for "drug" use by "the circumstances surrounding the
distribution of the article." These circumstances include the product's
conventional cigarette appearance; its design, formulation, and function to
deliver to the body through inhalation of a smoke-like aerosol (resembling
conventional cigarette smoke) various volatile chemical substances,
including nicotine, produced by the article; and how the product is intended
to be manipUlated and used like conventional cigarettes to affect the body's
structures and functions and/or to treat/mitigate the symptoms of nicotine
addiction.

(AR DET 82). Based on this conclusion, FDA issued "Refusal of Admission" notices on

March 16,2009, for both shipments and directed that the "products must be exported or

destroyed under Customs supervision within 90 days." (AR 102-04, 105-06).2

A short time later, FDA added electronic cigarettes manufactured by three Chinese

companies to Import Alert 66-41, a directive that authorizes FDA district offices to

"detain without physical examination any [u]napproved and/or misbranded drug listed in

the attachment." (Administrative Record ofImport Alert 66-41 ("AR IA") 3,85-86).

2 Smoking Everywhere also alleges that another inbound shipment of its electronic
cigarettes was detained at FDA's request on April l3, 2009, at the Port of Miami in
Miami, Florida (Smoking Everywhere Complaint [# 1] at ~ 28), but FDA reports that it
has been unable to find any record of this shipment (FDA Opposition [#14] at 11).

6
Between March 30 and April 7, 2009, FDA listed electronic cigarettes and electronic

cigarette components manufactured by Shenzhen Kanger Technology Co. Ltd., Desonic

Industrial, and Loong Totem Science & Technology as unapproved or misbranded drugs.

(AR IA 85-86). NJOY claims, however, that even though the import alert only applies to

the three named manufacturers, FDA's publicly available Import Refusal Reports show

that, from June 2008 to May 2009, FDA district offices have denied entry to more than

thirty-five shipments of electronic cigarettes and their components from twenty other

manufacturers. (NJOY Supp. Reply [#44] at 6; Declaration of David A. Becker in

Support of Motion for Preliminary Injunction [#44-1, -2] at,-r,-r 3-4).

In NJOY's case, an inbound shipment of its electronic cigarettes arrived in

Phoenix, Arizona on April 15,2009. (NJOY Complaint [#22] at,-r 27, Ex. B). Five days

later, FDA issued a notice of "Detention" on the ground that NJOY's products "appear to

be intended to both affect the structure or function of the body, and to prevent, mitigate,

or treat the withdrawal symptoms of nicotine addiction." (Jd. at,-r,-r 27-28, Ex. B).

Arguing that FDA intends to deny entry to NJOY's electronic cigarettes based on FDA's

conclusion (evident in Smoking Everywhere's case) that electronic cigarettes are

unapproved drug-device combinations under the FDCA, NJOY requested leave to

intervene in this case, which the Court granted.

DISCUSSION

Plaintiffs seek a preliminary injunction barring FDA from refusing entry of their

electronic cigarette products on the basis that those products are unapproved drug-device

7
combinations. The factors that a court must weigh in deciding whether to grant

preliminary injunctive relief are, of course, well-known: (1) whether "the plaintiff has a

substantial likelihood of success on the merits"; (2) whether "the plaintiff would suffer

irreparable injury were an injunction not granted"; (3) whether "an injunction would

substantially injure other interested parties"; and (4) whether "the grant of an injunction

would further the public interest." Ark. Dairy Co-op Ass 'n, Inc. v. Us. Dep 't ofAgric.,

573 F.3d 815,821 (D.C. Cir. 2009). The party seeking a preliminary injunction need not

prevail on each factor. "If the arguments for one factor are particularly strong, an

injunction may issue even if the arguments in other areas are rather weak." CityFed Fin.

Corp. v. Office of Thrift Supervision, 58 F.3d 738,747 (D.C. Cir. 1995). Having weighed

the relevant factors, the Court concludes that plaintiffs have made a sufficient showing of

success on the merits and irreparable harm to warrant preliminary injunctive relief.

I. Likelihood Of Success On The Merits

In FDA v. Brown & Williamson Tobacco Corp., the Supreme Court held that

tobacco products, like traditional cigarettes, are not subject to FDA regulation as a drug or

device. 529 U.S. 120, 160-61 (2000).3 Because electronic cigarettes, as marketed by

3Because FDA had found that tobacco products were "unsafe" and "dangerous,"
the Supreme Court reasoned "that were the FDA to regulate cigarettes and smokeless
tobacco, the [FDCA] would require the agency to ban them." Brown & Williamson
Tobacco, 529 U.S. at 134-37. The Supreme Court noted, however, that a ban on tobacco
products pursuant to the FDCA would contravene congressional intent because Congress
"has foreclosed the removal of tobacco products from the market." Id. at 137. Given that
Congress had passed legislation specifically aimed at tobacco on six occasions since
1965, the Supreme Court inferred that "the collective premise of these statutes is that

8
plaintiffs, are the functional equivalent of traditional cigarettes, plaintiffs contend that

FDA cannot regulate their products. They further contend that Congress's recent

enactment of the Family Smoking Prevention and Tobacco Control Act, Pub. L. No. 111-

31, 123 Stat. 1776 (2009) ("Tobacco Act"), supports their argument. 4 Under the Tobacco

Act, FDA may now regulate tobacco products, which the Act defines as "any product

made or derived from tobacco that is intended for human consumption," 21 U.S.C. §

321(rr)(l), but it cannot regulate those products as it would a drug or device under the

cigarettes and smokeless tobacco will continue to be sold in the United States." Id. at
137-39. To the extent that tobacco products are unsafe and yet cannot be banned, the
Supreme Court concluded that "they simply do not fit" within the FDCA's regulatory
scheme. Id. at 143.

4 Even though Congress did not enact the Tobacco Act until after the agency action
under review in this case, it is significant because it reflects Congress's understanding of
the state of the law at the time of the agency action. Enacted against the backdrop of the
Supreme Court's decision in Brown & Williamson Tobacco, the Tobacco Act reflects
Congress's intent to confer FDA jurisdiction where it did not previously exist. One of the
enumerated purposes of the Act is "to provide authority to the Food and Drug
Administration to regulate tobacco products under the Federal Food, Drug, and Cosmetic
Act ... , by recognizing it as the primary Federal regulatory authority with respect to the
manufacture, marketing, and distribution of tobacco products." Pub. L. No. 111-31, 123
Stat. at 1781. Thus, to the extent that a particular product satisfies the Tobacco Act's
definition of "tobacco product" and is exempt from regulation as a drug or device under
the terms of the Act, the Court can assume that the product would have been exempt from
FDA jurisdiction prior to passage of the Tobacco Act. Indeed, the Act itself provides that
it is not intended to "affect, expand, or limit [FDA's] authority over (including the
authority to determine whether products may be regulated), or the regulation of, products .
. . that are not tobacco products under [the drug-device subchapter]." 21 U.S.c. §
387a(c)(l). The parties seem to agree that the Tobacco Act did not move the definitional
line between tobacco products and drugs; they simply disagree about where the line is
drawn. Undoubtedly, Congress's passage of the Tobacco Act sheds considerable light on
that issue.

9
FDCA, id. § 387a(a).5 There being no dispute that the nicotine in plaintiffs' electronic

cigarettes is naturally distilled from actual tobacco and is intended for human

consumption (FDA Supp. Br. [#41] at 5 n.3), plaintiffs assert that their electronic

cigarettes qualifY as a tobacco product and are therefore exempt from regulation as a

drug-device combination.

Not surprisingly, FDA contends that the Tobacco Act supports its argument that

electronic cigarettes fall beyond the scope of Brown & Williamson Tobacco and, as a

result, are subject to regulation under the FDCA as a drug-device combination. To make

its case, FDA points to a provision of the Tobacco Act that excludes from the meaning of

"tobacco product" any "article that is a drug under [21 U.S.C. § 321(g)(1)], a device

under [21 U.S.C. § 321(h)], or a combination product described in [21 U.S.C. § 353(g)]."

21 U.S.c. § 321(rr)(2)-(3). FDA contends that the labeling and promotional materials for

Smoking Everywhere'S products "represent and suggest that the product[s] will provide

the same drug effects on the structure and function of the human body as cigarettes."

(FDA Supp. Br. [#41] at 5). Because of those effects, FDA claims that the electronic

cigarettes marketed by Smoking Everywhere qualifY as a drug-device combination, which

the FDCA defines as an article "intended to affect the structure or any function of the

5The Tobacco Act provides that "[t]obacco products, including modified risk
tobacco products ... , shall be regulated by the [Secretary of Health and Human Services]
under this subchapter and shall not be subject to the provisions of subchapter V of this
chapter," which pertains to the regulation of "drugs" and "devices." 21 U.S.C. § 387a(a).

10
body." 21 U.S.C. § 32l(g)(1)(C).6 FDA also argues that Smoking Everywhere's

promotional materials suggest that its electronic cigarettes are intended to have a

therapeutic effect. According to FDA, "[t]he assertion that E-Cigarettes provide a

'healthier way' to obtain the effects of nicotine establishes that E-Cigarettes are intended

to prevent or alleviate nicotine withdrawal symptoms." (FDA Opposition [# 14] at 21).

Consequently, FDA claims that Smoking Everywhere's products also satisfy the FDCA's

other definition of a drug-device combination as an article "intended for use in the

diagnosis, cure, mitigation, treatment, or prevention of disease." 21 U.S.C. §

32l(g)(1)(B). Based on the totality of the labeling and promotional materials, FDA

contends that Smoking Everywhere's electronic cigarettes either are intended to affect the

structure or function of the body or are intended for use in the mitigation of disease.

Thus, FDA concludes that those products fall well within the FDCA's definition of a

drug-device combination and should be regulated as such.

6 The Court notes that the FDCA defines a "device" along the same lines as a
"drug." For instance, a "device" is defined as "an instrument, apparatus, ... or other
similar or related article, including any component, part, or accessory," that is "intended
for use in the diagnosis ... cure, mitigation, treatment, or prevention of disease" or that is
"intended to affect the structure or any function of the body." 21 U.S.C. § 321 (h)(2)-(3).
Unlike a drug, however, a device "does not achieve its primary intended purposes through
chemical action within or on the body" and "is not dependent upon being metabolized for
the achievement of its primary intended purposes." Id. § 321 (h). Articles that "constitute
a combination of a drug, device, or biological product" are regulated as combination
products. Id. § 353(g). FDA understands this provision as giving it the discretion to
regulate combination products as drugs, as devices, or as both. Regulations Restricting
the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and
Adolescents, 61 Fed. Reg. 44,396, 44,400 (1996).

11
 Plaintiffs seek review under the Administrative Procedure Act ("APA"), 5 U.S.C.

§ 701 et seq. The AP A requires a court to set aside final agency action that it finds to be

"arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or

"in excess of statutory jurisdiction, authority, or limitations, or short of statutory right."

Jd. § 706(2)(A), (CV Because plaintiffs invite the Court to review FDA's construction

7 There is some question about whether FDA's decision to detain NJOY's
shipment without a "Refusal of Admission" notice is a final agency action. (See FDA
Supp. Br. [#41] at 9). NJOY contends that because further resort to the administrative
process would be futile, it need not fully exhaust its administrative remedies. I agree.
Exhaustion does not apply where it "would be futile because of certainty of an adverse
decision." James v. Us. Dep't a/Health & Human Servs., 824 F.2d 1132,1138 (D.C.
Cir. 1987) (internal quotation marks and emphasis omitted). "Resort to administrative
remedies is 'futile' and adverse action certain," if the agency "has evidenced a strong
position on the issue together with an unwillingness to reconsider." Jd. at 1139. FDA has
taken the sweeping position in this litigation that if an electronic cigarette product claims
to "provide the same drug effects on the structure or function of the human body as
cigarettes," then that product meets the definition of a drug or device under the FDCA.
(FDA Supp. Br. [#41] at 5). On that basis, FDA denied entry to Smoking Everywhere'S
electronic cigarettes because, for instance, they claimed to "provide smokers the same
delight, physical and emotional feelings" as traditional cigarettes. (AR DET 49).
NJOY's product makes a similar claim. For example, NJOY markets its electronic
cigarettes as providing "all the pleasures of smoking without all the problems."
(Leadbeater Decl. [#24-1] at Ex. A). It is unlikely that an electronic cigarette
manufacturer or distributor could market its product in any other way given that
electronic cigarettes are made to replicate the effects of regular cigarettes. An FDA
official suggested as much when he advised a representative of Smoking Everywhere that
FDA did not believe Smoking Everywhere's product could be "relabeled to make it
anything other than an article which ... appears to be a drug-device combination." (AR
DET 82). Given FDA's refusal to allow entry of Smoking Everywhere's products, given
its unwavering position in this litigation (even after passage of the Tobacco Act), and
given the manner in which NJOY has marketed its electronic cigarettes, there is no reason
to believe that FDA would treat NJOY's products any differently than Smoking
Everywhere'S products. Indeed, as NJOY points out, FDA has already refused entry to as
many as thirty-five shipments of electronic cigarettes from twenty manufacturers. (NJOY
Supp. Reply [#44] at 6). Accordingly, the Court concludes that exhaustion would be

12
and application of the FDCA, FDA is entitled to deference under Chevron US.A., Inc. v.

Natural Res. De! Council, Inc., 467 U.S. 837 (1984). See Brown & Williamson Tobacco,

529 U.S. at 132 (stating that Chevron is the appropriate framework for analyzing FDA's

claim of authority to regulate tobacco products). 8 Chevron deference is appropriate in

this case because FDA's interpretation and application of the relevant statutory provisions

forms the basis of its decision to detain or to refuse entry of plaintiffs' products and thus

carries the force of law. See Citizens Exposing Truth About Casinos v. Kempthorne, 492

futile and that NJOY's claims, like Smoking Everywhere's, are now properly before the
Court.

8 Even more boldly, FDA also argues that its import decisions are committed to

agency discretion and thus are not subject to any judicial review. Judicial review is not
permitted under the AP A where "agency action is committed to agency discretion by
law." 5 U.S.C. § 701(a)(2). FDA contends that the authority to refuse imports is
committed to its discretion by 21 U.S.C. § 381(a)(3), which authorizes FDA to refuse
admission of a drug or device if it "appears" from examination or "otherwise" that the
drug or device is "adulterated, misbranded, or in violation of section 355." For FDA,
Congress's use of the term "appears" is dispositive. By authorizing FDA to refuse
admission to any product that "appears" misbranded or adulterated, "Congress
empowered the agency to exercise its discretion in a broad and flexible manner." (FDA
Opposition [#14] at 29). FDA's argument goes much too far. Agency action is
committed to agency discretion by law only where "the statute is drawn so that a court
would have no meaningful standard against which to judge the agency's exercise of
discretion." Heckler v. Chaney, 470 U.S. 821, 830 (1985) (emphasis added). Here, there
is such a standard: whether the article under inspection is "adulterated, misbranded, or in
violation of section 355." 21 U.S.C. § 381(a)(3). The statute's use of the term "appears"
affords the agency, at best, some degree of deference in close cases, but it certainly does
not permit the agency unfettered discretion to refuse an article that obviously is beyond
the scope of the FDCA. Furthermore, the issue in this case is not whether a particular
drug appears adulterated or misbranded, but whether a particular product is even a drug
subject to the FDCA. FDA might well be entitled to Chevron deference on this threshold
legal question, but it is certainly not entitled to unreviewable discretion.

13
F.3d 460,466 (D.C. Cir. 2007) (holding that Chevron deference applies, even in the

absence of formal rulemaking or adjudication, where an agency action has the force of

law).

The first step in the Chevron analysis requires a reviewing court to inquire

"whether Congress has directly spoken to the precise question at issue." Chevron, 467

U. S. at 842. If so, the court must give effect to Congress's "unambiguously expressed

intent." Id. at 843. If, however, Congress has not spoken unambiguously, the court must

defer to the agency's construction of the statute so long as that construction is

"permissible." Id.

The relevant statutory provisions, particularly the Tobacco Act's amendments to

the FDCA, hardly constitute the kind of direct statement by Congress that would satisfy

the first step of the Chevron analysis. Thus, the real issue under Chevron is whether

FDA's position is a "permissible"-that is, reasonable-construction or application of

those provisions. For the following reasons, I believe it is not.

A. Structure Or Function Claims

FDA says that the electronic cigarettes marketed by plaintiffs are a drug-device

combination and should therefore be excluded from the Tobacco Act's definition of

"tobacco product" because the labeling and promotional materials "represent and suggest

that the product will provide the same drug effects as cigarettes." (FDA Opposition [# 14]

at 19). Because plaintiffs' electronic cigarettes are to be used, like conventional

cigarettes, as a means for delivering nicotine and because consumers and scientists widely

14
believe that nicotine has drug-like effects, (id. at 18-19), FDA contends that plaintiffs'

electronic cigarettes are intended to affect the structure or function of the body, (FDA

Supp. Br. [#41] at 5). As a result, they qualifY as a drug-device combination, not as a

tobacco product. (Id.). Put simply, this argument is bootstrapping run amuck.

That electronic cigarettes are devices for delivering nicotine and are intended to

have the same effect on the structure and function of the body as cigarettes is hardly a

basis for classifYing electronic cigarettes as a drug-device combination, thereby excluding

them from the definition of "tobacco product." If it were, then traditional cigarettes

would be excluded as well. Indeed, any tobacco product containing nicotine and claiming

to have some pharmacological effect would be excluded. Because this result would

effectively dismantle the existing regulatory wall Congress erected between tobacco

products and drug-device combinations, I can easily infer that Congress did not intend

tobacco products to be drugs merely because they deliver nicotine. 9

9 Another provision of the Tobacco Act supports this inference as well. If
Congress intended that FDA regulate tobacco products as drugs merely because they
deliver nicotine, then it is certainly possible, ifnot likely, that FDA would have to ban
those products as unsafe if the manufacturer intended that they be used, like traditional
cigarettes, solely for the enjoyment of their pharmacological effects. Approval of a new
drug is contingent on clinical tests that show the drug to be safe and effective for its
intended use. 21 U.S.C. § 355(b)(1), (d). FDA acknowledges, and the administrative
record shows, that nicotine causes addiction, which is a harmful disease. (See, e.g.,
Administrative Record of Nicotine Background ("AR NIC") 23, 49-50, 66). Congress
has also issued findings that "[n]icotine is an addictive drug" and that "[t]obacco
dependence is a chronic disease." Pub. L. No. 111-31, 123 Stat. at 1777, 1779. At high
doses, nicotine exposure can even be fatal. (AR NIC 54). Nevertheless, whatever health
implications nicotine might have, the Tobacco Act expressly forbids FDA from
"requiring the reduction of nicotine yields ofa tobacco product to zero." 21 U.S.C. §

15
 Not surprisingly, FDA does not contend that traditional tobacco products like

cigarettes are drug-device combinations. FDA accepts, as it must, that those products are

exempt from such regulation by the Supreme Court's decision in Brown & Williamson

Tobacco. Instead, FDA contends that only non-traditional tobacco products can be drug-

device combinations. According to FDA, by excluding drugs or devices from the

Tobacco Act's definition of "tobacco product," Congress merely "confirmed its intention

that tobacco-containing products that [were] subject to FDA's pre-existing jurisdiction

are still subject to that jurisdiction." (FDA Supp. Br. [#41] at 3 (emphasis added)). I

disagree.

FDA attempts to avoid the full implications of its rationale for treating electronic

cigarettes as drug-device combinations by limiting the meaning of "tobacco product" (at

least as applied to products containing nicotine) to those specific products at issue in

Brown & Williamson Tobacco. In that case, the Supreme Court acknowledged that if

FDA classified traditional tobacco products, like cigarettes, as drugs or devices under the

FDCA, it would have to ban those products as unsafe for their intended use. Brown &

Williamson Tobacco, 529 U.S. at 134-37. To do so, however, would run afoul of

congressional intent as revealed in subsequent tobacco-specific legislation-such as the

Federal Cigarette Labeling and Advertising Act ("FLCAA"), Pub. L. No. 89-92, 79 Stat.

387 g( d)(3 )(B). It is apparent, therefore, that Congress did not intend tobacco products
delivering nicotine for recreational use to be classified as a drug-device combination and
thus subject to a potential ban on nicotine yields.

16
282 (1965), and the Comprehensive Smokeless Tobacco Health Education Act of 1986

("CSTHEA"), Pub. L. No. 99-252, 100 Stat. 3D-which regulates certain tobacco

products but does not ban them. ld. at 137-39. The FLCAA applies only to "cigarettes"

and "little cigars," 15 U.S.C. § 1331 et seq.,10 and the CSTHEA applies to "smokeless

tobacco" products, 15 U.S.c. 4401 et seq. II Because neither act encompasses electronic

cigarettes, FDA contends that those products, at least as they are marketed by plaintiffs,

are beyond the scope of Brown & Williamson Tobacco and are therefore regulable as a

drug or device under the FDCA. This argument is too clever by half.

FDA's interpretation of "tobacco product" is not reasonable when considered in

the context of the entire Tobacco Act. For instance, one provision of the Act specifically

prohibits FDA from "banning all cigarettes, all smokeless tobacco products, all little

cigars, all cigars other than little cigars, all pipe tobacco, or all roll-your-own tobacco

products." 21 U.S.C. § 387g(d)(3)(A). Yet another provision prohibits FDA from

"requiring the reduction of nicotine yields of a tobacco product to zero." 21 U.S.c. §

387g(d)(3)(B). That Congress would single-out "traditional" products for specific

10The FLCAA defines "cigarette" as "any roll of tobacco wrapped in paper or in
any substance not containing tobacco" or "any roll of tobacco wrapped in any substance
containing tobacco which ... is likely to be offered to ... consumers as a cigarette." 15
U.S.C. § 1332(1). It defines "little cigar" as "any roll of tobacco wrapped in leaf tobacco
or any substance containing tobacco ... and as to which one thousand units weigh not
more than three pounds." Id. § 1332(7).

II The CSTHEA defines "smokeless tobacco" as "any tobacco product that consists
of cut, ground, powdered, or leaf tobacco and that is intended to be placed in the oral or
nasal cavity." 21 U.S.C. § 387(18).

17
protection but use the broader term "tobacco product" when denying FDA the power to

eliminate nicotine yields suggests that Congress understood the term to encompass more

than traditional tobacco products and that Congress intended to permit nicotine use,

whether from unforeseen, non-traditional sources (like electronic cigarettes) or from well-

established, traditional sources (like regular cigarettes).

More importantly, it is apparent from Congress's broad definition of "tobacco

product" that it intended the Tobacco Act's regulatory scheme to cover far more than the

fixed array of traditional tobacco products at issue in Brown & Williamson Tobacco.

Both the FLCAA and the CSTHEA only apply to "cigarettes," "little cigars," and

"smokeless tobacco," which Congress defined with considerable specificity, yet the

Tobacco Act applies to "tobacco products," which Congress defined expansively as "any

product made or derived from tobacco that is intended for human consumption." 21

U.S.C. § 321(rr)(l). Furthermore, Congress made clear that FDA's new jurisdiction over

tobacco products applies, not only "to all cigarettes, cigarette tobacco, roll-your-own

tobacco, and smokeless tobacco," but "to any other tobacco products" as well. Id. §

387a(b). Simply put, the Court cannot accept that Congress defined "tobacco product" in

this manner when it knew all along that the only tobacco products beyond FDA's drug-

device jurisdiction were the traditional products governed by the FLCAA and CSTHEA

(with the possible exception of any nicotine-free tobacco products).

This conclusion is particularly warranted given that the line FDA attempts to draw

between traditional tobacco products and non-traditional tobacco products is based on a

18
flawed reading of Brown & Williamson Tobacco. FDA contends that the logic and

reasoning ofthat case is limited to the traditional tobacco products covered by the

FLCAA and CSTHEA. This reading of the case is defective, however, because it ignores

that the Supreme Court understood Congress's enactment of that tobacco-specific

legislation, not as a narrow exception to the FDCA, but as a ratification of "the FDA's

long-held position that it lacks jurisdiction under the FDCA to regulate tobacco

products." Brown & Williamson Tobacco, 529 U.S. at 144. Because Congress was acting

"against the backdrop of the FDA's consistent and repeated statements that it lacked

authority under the FDCA to regulate tobacco absent claims of therapeutic benefit by the

manufacturer," id. (emphasis added), the Supreme Court had little choice but to conclude

that Congress had "effectively ratified" FDA's position that it lacked authority over

tobacco products as "customarily marketed," id. at 156. Thus, the line drawn by the

Supreme Court was not between traditional and non-traditional tobacco products, as FDA

suggests, but between tobacco products as customarily marketed and those that claim

therapeutic benefits.12 Against this backdrop, the Tobacco Act reflects Congress's intent

12Although the Supreme Court noted that it was not deciding the larger question of
whether any product could be classified as a drug or device absent claims of therapeutic
or medical benefit, it made clear nevertheless that FDA's assertion of jurisdiction over
customarily-marketed tobacco products contradicted Congress's clear intent, Brown &
Williamson Tobacco, 529 U.S. at 131-32, which the Supreme Court found to be based on
FDA's repeated representations that it lacked authority under the FDCA to regulate
tobacco products "absent claims of therapeutic benefit by the manufacturer," id. at 144-
56. See also id. at 156 ("Congress has affirmatively acted to address the issue of tobacco
and health, relying on the representations of the FDA that it had no authority to regulate
tobacco." (emphasis added».

19
to undo what it had earlier ratified. No longer will FDA lack jurisdiction over tobacco

products as customarily marketed. Congress enacted the Tobacco Act to confer FDA

jurisdiction over any tobacco product-whether traditional or not-that is sold for

customary recreational use, as opposed to therapeutic use. As such, the Tobacco Act, in

effect, serves as an implicit acknowledgment by Congress that FDA's jurisdiction over

drugs and devices does not, and never did, extend to tobacco products, like electronic

cigarettes, that are marketed in customary fashion for purely recreational purposes. 13

Furthermore, the Tobacco Act's broad definition of "tobacco product" is also an implicit

admission by Congress that the existing tobacco-specific legislation, such as the FLCAA

and CSTHEA, failed to cover the full array of tobacco products that were beyond FDA's

jurisdiction under the FDCA.

This conclusion does not mean that tobacco products can never be classified as a

drug or device in the absence of therapeutic claims. A case might arise, for instance,

13 Although FDA has in the past asserted jurisdiction over "Favor Smokeless
Cigarettes" and "Nicogel Tobacco Hand Gel," both of which purported to be recreational,
non-therapeutic nicotine products (see AR NIC 1-11, 58-80), those actions were not
judicially reviewed. In any event, FDA's decision on smokeless cigarettes came before
Brown & Williamson Tobacco and is not in step with the reasoning of that case, which
was based in part on FDA's representations to Congress that customarily-marketed
tobacco products are not subject to FDA jurisdiction absent therapeutic claims.
Furthermore, FDA predicated its decision to assert jurisdiction over Nicogel on the
dissimilarity between that product and traditional tobacco products. (See AR NIC 68
(stating that Nicogel "cannot satisfY any of the sensory needs or desires associated with
smoking")). Other products cited by FDA-such as Nicotine Lollipops, Nicotine Lip
Balm, and Nicotine Water-are not "customarily marketed" tobacco products because
they too are dissimilar from traditional tobacco products, and more importantly, because
they make express therapeutic claims. (See AR NrC 12-13,20).

20
where a manufacturer markets its tobacco product as having a non-therapeutic effect on

the structure or function of the body that is different from nicotine. In that circumstance,

the product might properly be classified as a drug or device because it is not a tobacco

product as "customarily marketed." But that is not the case here. FDA does not contend

that the electronic cigarettes marketed by plaintiffs are intended to affect the structure or

function of the body in any way materially different from traditional cigarettes. Indeed,

by FDA's own admission, Smoking Everywhere markets its product as providing "the

same drug effects on the structure and function of the human body as cigarettes." (FDA

Supp. Bf. [#41] at 5). Likewise, NJOY markets its product as providing "all the pleasures

of smoking." (Leadbeater Decl. [#24-1] at Ex. A). Because plaintiffs sell their electronic

cigarette products for customary recreational use, those products Gust like traditional

cigarettes) are properly excluded from the meaning of drug or device under the FDCA.

B. Therapeutic Claims

FDA also contends that the electronic cigarettes marketed by Smoking Everywhere

are drug-device combinations, not only because they contain nicotine and are intended to

affect the structure or function of the body in the same way as traditional cigarettes, but

because they are intended "to prevent or alleviate nicotine withdrawal symptoms." (FDA

Opposition [#14] at 21).14 According to FDA's "Correspondence" issued on December

14The Tobacco Act certainly contemplates that tobacco products marketed for the
therapeutic purpose of treating nicotine addiction might constitute a drug-device
combination excluded from the Tobacco Act's definition of "tobacco product." The Act
specifically provides that products "intended to be used for the treatment of tobacco

21
23,2008, FDA found that "'Smoking Everywhere E-Cigarette' and its component parts

appear to be intended ... to prevent, mitigate, or treat the withdrawal symptoms of

nicotine addiction." (AR DET 97-98, 100-01).

Unfortunately for FDA, however, this finding is "unsupported by substantial

evidence" in the record. See 5 U.S.C. § 706(2)(E). The "intended use" of a product is

determined by "the objective intent of the persons legally responsible" for labeling the

product. 21 C.F .R. § 201.128. Objective intent may be shown, for example, "by labeling

claims, advertising matter, or oral or written statements" by the labeler. Id. It may also

be shown "by the circumstances that the article is, with the knowledge of such persons or

their representatives, offered and used for a purpose for which it is neither labeled nor

advertised." ld. Here, the overwhelming sum of Smoking Everywhere's promotional

material is aimed, not toward preventing, mitigating, or treating nicotine addiction and the

effects of withdrawal, but toward encouraging nicotine use. Just a sampling of the

promotional claims reveals, for instance, that Smoking Everywhere intends its electronic

cigarettes to provide "the nicotine hit that smokers crave," to "refresh smokers and satisfY

their smoking addiction," and to provide "the same pleasures of smoking a traditional

cigarette." (AR DET 51, 56). The brand name itself is evidence that the product is not

intended to prevent, treat, or mitigate nicotine use and addiction but to promote "the

dependence, including smoking cessation, is not a modified risk tobacco product under
this section if it has been approved as a drug or device by the Food and Drug
Administration and is subject to the requirements of subchapter V of this chapter." 21
U.S.C. § 387k(c).

22
freedom to smoke everywhere." (AR DET 49). Not only does Smoking Everywhere

offer low nicotine dosages, it offers high dosages as well. (AR DET 25, 28). It even

offers its product in assorted flavors. (AR DET 28). Indeed, the overarching theme of

the marketing campaign, from the pictures to the promotional claims, is that smoking

electronic cigarettes is fun and exciting. One certainly does not get the impression from

the advertising materials in the record that nicotine addiction is something that Smoking

Everywhere intends its product to treat and cure. Moreover, there is little evidence in the

record that Smoking Everywhere offers its product with the knowledge that any

significant number of its customers will use electronic cigarettes to treat nicotine

addiction, even though the product is not labeled or marketed that way.

FDA references only three claims made in Smoking Everywhere's literature: (l)

electronic cigarettes offer "smokers a chance of smoking in a much healthier way," (2)

electronic cigarettes are "a great alternative to help ... stop smoking real cigarettes," and

(3) "I've been smoking real cigarettes for over 20 years and really wanted to stop ... I've

been using it for 3 weeks now and feel great." (ARDET 49,21; FDA Opposition [#14]

at 21). The latter two claims are customer testimonials posted on the Smoking

Everywhere website. None of these claims, on their face, suggests an objective intent to

treat nicotine addiction and withdrawal. At best, these claims demonstrate that Smoking

Everywhere markets its electronic cigarettes as an alternative-albeit a healthier

23
alternative-to traditional cigarettes. IS FDA does not point to any representation by

Smoking Everywhere that its product is intended to help wean smokers off of nicotine.

Nor does FDA identify any product labeling that includes instructions about how to

overcome nicotine addiction using electronic cigarettes. The clear import of Smoking

Everywhere's advertising is that it wants consumers to use its electronic cigarettes for the

same recreational purposes and with the same frequency as traditional cigarettes. 16 Thus,

FDA's finding that the electronic cigarettes marketed by Smoking Everywhere appear to

15 To the extent that smoking cessation is a therapeutic claim distinct from the
treatment of nicotine addiction and withdrawal, the Court is aware that the two customer
testimonials referenced above suggest that electronic cigarettes are intended for smoking
cessation, ifnot for treating nicotine dependence (as suggested by FDA). Given Smoking
Everywhere's express disclaimer that its electronic cigarettes are not intended as a
smoking cessation device, (AR DET 1), and given the overwhelming evidence in the
record that its electronic cigarettes are intended merely as a recreational alternative to
traditional cigarettes (and not necessarily as a therapeutic replacement for traditional
cigarettes), the Court concludes that the two testimonials cited by FDA are not alone
sufficient to support a finding that the product appears to be intended to help customers
quit smoking.

16 In this respect, Smoking Everywhere's electronic cigarettes are different from
other nicotine products regulated by FDA that bear no similarity to traditional tobacco
products and make express therapeutic claims. For instance, Nicotine Lollipops claim to
help smokers quit "by suppressing the symptoms o/nicotine withdrawal" and by allowing
"the individual to control the amount of nicotine taken based on the body's need at the
time." (AR NIC 12 (emphasis added». Nicotine Lip Balm represents that it helps
"relieve the craving for nicotine" and is "designed to help a person quit." (AR NIC 13
(emphasis added». Similarly, Nicotine Water claims that it is a "[m]ethod of delivering
Nicotine to reduce use 0/ tobacco products" and is "more effective" than other products
for treating addiction, like nicotine patches or gum. (AR NIC 20 (emphasis in original».

24
be intended to prevent, mitigate, or treat nicotine addiction is simply not supported by

substantial evidence in the administrative record.17

Nor does the fact that plaintiffs advertise their products as a healthier alternative to

traditional smoking mean that electronic cigarettes quality as a drug-device combination

under the FDCA. Smoking Everywhere advertises, for instance, that its product poses

"less health risk." (AR DET 21). Along similar lines, NJOY markets its product as

having "all the pleasures of smoking without all the problems." (Leadbeater Decl. [#24-

1] at Ex. A). A product qualifies as a "drug" if it is "intended for use in the diagnosis,

cure, mitigation, treatment, or prevention of disease." 21 U.S.C. § 321(g)(1)(B). The

Court has already concluded based on the information before it that the electronic

cigarettes marketed by plaintiffs are not intended for treating the disease of nicotine

addiction. To the extent those products are marketed as providing the same experience as

traditional cigarettes but without the negative health consequences associated with tar and

smoke, they fall within the plain meaning of "modified risk tobacco product," which the

Tobacco Act defines as any tobacco product "sold or distributed for use to reduce harm or

the risk of tobacco-related disease associated with commercially marketed tobacco

17 With respect to NJOY, FDA provides no factual basis at this point for the Court

to conclude that NJOY's electronic cigarettes are intended to treat nicotine addiction or to
facilitate smoking cessation. Indeed, NJOY represents that it has always labeled its
products with a disclaimer stating that the products are not for smoking cessation.
(Leadbeater Decl. [#24-1] at ~ 9). The Court is mindful that the factual record relating to
NJOY is sparse. In the course of this litigation, FDA may produce evidence from an
administrate record that NJOY's products in fact make therapeutic claims. Absent such
evidence, however, FDA may not detain those products on that basis.

25
products." ld. § 387k(b)(1). To treat as a drug any tobacco product that merely claims to

be a healthier alternative would effectively nullifY the provisions relating to modified risk

tobacco products, which represent Congress's implicit acknowledgment that those

products were outside of FDA's jurisdiction prior to the Tobacco Act. Moreover, it

would create the absurd result that certain tobacco products-like low tar cigarettes or

electronic cigarettes-would be exposed to the more onerous regulatory burdens for drugs

and devices merely because they claim to be healthier alternatives to traditional tobacco

products. Because the relevant statutory provisions do not compel this result, it is easy to

conclude that Congress did not intend it.

In sum, absent substantial evidence of the manufacturer's objective intent that its

electronic cigarettes affect the structure or function of the body in a way distinguishable

from "customarily marketed" tobacco products or that its electronic cigarettes have the

therapeutic purpose of treating nicotine withdrawal, there is no basis for FDA to treat

electronic cigarettes, as they are marketed by the plaintiffs in this case, as a drug-device

combination when all they purport to do is offer consumers the same recreational effects

as a regular cigarette. Thus, the plaintiffs are substantially likely to succeed on their

claim that FDA cannot regulate and thereby exclude their electronic cigarettes from the

United States on the basis that those products are an unapproved drug-device combination

under the FDCA. 18

18The Court takes no position on whether there is some other basis for FDA (or
any other agency) to exclude electronic cigarettes from entry into the United States.

26
II. Irreparable Harm

Plaintiffs contend that they will suffer irreparable harm because FDA has

disallowed entry into the United States of their electronic cigarettes-their only product

line-and will continue to do so. To constitute irreparable harm, the claimed injury "must

be both certain and great; it must be actual and not theoretical." Wisconsin Gas Co. v.

FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). To say the least, the harm to plaintiffs in this

case is anything but theoretical. FDA has refused admission of Smoking Everywhere's

electronic cigarette products and has ordered that they be exported or destroyed. In

NJOY's case, FDA has detained its inbound shipment of electronic cigarettes and, by all

accounts, will continue to do so. FDA justifies its decision to detain or refuse entry to

these products because the products are intended to provide the same drug effects on the

structure and function of the body as cigarettes. Because the point of electronic cigarettes

is to provide the same effects as regular cigarettes, there is little reason to believe that

FDA will not exclude future shipments of plaintiffs' products on the same basis.

The question then is whether the claimed injury-an economic one-is likely to be

irreparable absent a preliminary injunction. The law is well-settled "that economic loss

does not, in and of itself, constitute irreparable harm" unless, of course, the loss

"threatens the very existence of the movant's business." Id. Both Smoking Everywhere

and NJOY represent that the inability to import their electronic cigarettes into the United

Certainly, FDA now has jurisdiction to regulate tobacco products like electronic
cigarettes in any manner it wishes consistent with the Tobacco Act and the APA.

27
States for domestic and international distribution will deprive them of needed revenue and

thus threaten the continued viability of their respective enterprises. I agree.

Since its founding over a year ago, Smoking Everywhere has imported and sold

more than 600,000 electronic cigarette kits. (Smoking Everywhere Complaint [#1] at ~

7). It derives all of its revenue from the sale of these products, which are its sole product

line. (Id. at ~ 12). Smoking Everywhere claims that there is no domestic manufacturer of

electronic cigarettes, so it relies entirely on overseas manufacturers. (Id.). Smoking

Everywhere further represents that it must import the products into the United States

before it can sell them here or abroad. (Second Declaration of Elicko Taleb [#20-1] at ~

3). Because its electronic cigarette products are manufactured abroad and must first be

imported into the United States before they can be distributed or sold, Smoking

Everywhere will have no source of revenue once its inventory is exhausted, if FDA

continues to refuse admission of its products on the ground that those products are

unapproved drug-device combinations. To obtain approval as a drug under the FDCA is

undoubtedly a long and expensive process, and according to Smoking Everywhere, its

inventory is already near depletion. (Declaration of Elicko Taleb [#10-1] at, 4).

Furthermore, Smoking Everywhere currently has binding contracts with overseas

suppliers as well as approximately 120 independent distributors that would be jeopardized

if Smoking Everywhere were delayed indefinitely in bringing its products to market.

(Id.). Based on these representations, it is clear that the potential economic loss and loss

28
of good will are substantial, especially for a fledgling company like Smoking Everywhere

that has only one product line.

NJOY raises similar concerns. It has been selling electronic cigarettes since early

2007 and has now sold at least 135,000 units in the United States. (NJOY Complaint

[#22] at,-r 13). Like Smoking Everywhere, NJOY's sole business line is electronic

cigarettes. (Leadbeater Dec!. [#24-1] at,-r 6). As a result, "[v]irtually all ofNJOY's

revenues are derived from the importation of E-Cigarettes into the United States." (Jd. at

,-r 4). Because electronic cigarettes and their related components are the only product line

for both companies and because plaintiffs generate all, or virtually all, of their revenue

from the sale of imported electronic cigarettes, the potential for economic loss absent

preliminary injunctive relief is sufficiently grave to threaten plaintiffs' very existence.

Therefore, the Court is satisfied that plaintiffs have shown the necessary irreparable

harm. 19

19 It is also worth noting that even if the claimed economic injury did not threaten
plaintiffs' viability, it is still irreparable because plaintiffs cannot recover money damages
against FDA. Where a plaintiff cannot recover damages from an agency because the
agency has sovereign immunity, "any loss of income suffered by [the] plaintiff is
irreparable per se." Feinerman v. Bernardi, 558 F. Supp. 2d 36, 51 (D.D.C. 2008); see
also Clarke v. Office of Fed. Housing Enter. Oversight, 355 F. Supp. 2d 56, 65 (D.D.C.
2004) (Leon, J.) (noting that "courts have recognized that economic loss may constitute
'irreparable harm' where a plaintiffs alleged damages are unrecoverable"). Absent a
waiver, sovereign immunity shields the federal government and its agencies, like FDA,
from suit. FDIC v. Meyer, 510 U.S. 471, 475 (1994). The APA, of course, waives
sovereign immunity for federal agencies but only in actions "seeking relief other than
money damages." 5 U.S.C. § 702. Even though the Federal Tort Claims Act ("FTCA")
waives immunity for damages in some instances, it does not do so here. Claims "based
upon an act or omission of an employee of the Government ... in the execution of a

29
III. Harm To Third Parties And The Public Interest

Having concluded that the likelihood of success on the merits and the likelihood of

irreparable harm weigh in favor of plaintiffs, only a brief comment is warranted as to the

two remaining elements of the preliminary injunction inquiry. FDA contends that the

public interest in health and safety weighs in favor of denying preliminary relief because,

by enforcing the FDCA as it sees fit, FDA protects the public from unsafe and ineffective

drugs. FDA further contends that the potential harm to other interested parties or to the

public interest, should the court grant the preliminary injunction and allow the

unapproved electronic cigarettes into the market, would far outweigh the economic harm

to plaintiffs, should the court deny the preliminary injunction. I disagree. While FDA's

interest in protecting public health and safety is, in the abstract, paramount to plaintiffs'

purely economic interests, given the particular facts and circumstances of this case, I am

not convinced that the threat to the public interest in general or to third parties in

particular is as great as FDA suggests. Together, both Smoking Everywhere and NJOY

have already sold hundreds of thousands of electronic cigarettes, yet FDA cites no

evidence that those electronic cigarettes have endangered anyone. Nor has FDA cited any

evidence that electronic cigarettes are any more an immediate threat to public health and

statute or regulation, whether or not such statute or regulation be valid," as well as claims
arising out of "interference with contract rights," both of which would most likely apply
in this case, are excluded from the FTCA's general waiver of sovereign immunity for
torts. 28 U.S.C. § 2680(a), (h). There being no apparent avenue for obtaining damages
against FDA, any economic loss suffered by plaintiffs due to the detention or refused
admission of their products can never be recovered and is therefore irreparable.

30
safety than traditional cigarettes, which are readily available to the public. Furthennore,

now that FDA has regulatory power over electronic cigarettes through the Tobacco Act,

any harm to the public interest or to third parties caused by an injunction that merely

forbids FDA from regulating electronic cigarettes as a drug-device combination is greatly

diminished. At best, therefore, the potential hann to the public interest or to other

interested parties only marginally favors, if at all, the denial of preliminary injunctive

relief. To the extent the balance ofhanns and the public interest favor FDA, those factors

are overcome nevertheless by the likelihood of success on the merits and the likelihood of

irreparable hann, both of which strongly favor plaintiffs. Consequently, plaintiffs have,

in my judgment, met their burden for establishing entitlement to a preliminary injunction.

CONCLUSION

This case appears to be yet another example of FDA's aggressive efforts to

regulate recreational tobacco products as drugs or devices under the FDCA. Ironically,

notwithstanding that Congress has now taken the unprecedented step of granting FDA

jurisdiction over those products, FDA remains undeterred. Unfortunately, its tenacious

drive to maximize its regulatory power has resulted in its advocacy of an interpretation of

the relevant law that I find, at first blush, to be unreasonable and unacceptable. I am

mindful, however, that the purpose of preliminary injunctive relief is merely

"preventative, or protective; it seeks to maintain the status quo pending a final

detennination of the merits of the suit." Wash. Metro. Area Transit Comm 'n v. Holiday

Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977). Because I have concluded that plaintiffs

31
are substantially likely to succeed on the merits and are likely to suffer irreparable harm if

I do not return the parties to the status quo ante, their respective motions for preliminary

injunction are GRANTED pending a final disposition of this case. An Order consistent

with this opinion is attached herewith.

~
United States District Judge

32