Ruling could muddle Brown's case against electronic cigarettes

Kathy Woods Jan. 19, 2010, 12:40pm

Jerry Brown (D)

SACRAMENTO, Calif. (Legal Newsline)-A federal court decision issued last week could complicate California Attorney General Jerry Brown's case against the maker of electronic cigarettes.

Brown, a Democrat, is suing Smoking Everywhere, alleging that the Florida-based company is targeting minors in its marketing and making "misleading and irresponsible" claims that its cigarettes are safe.

Brown is seeking to bar the company from doing business in the Golden State until it can prove that its products are safe and approved by the U.S. Food and Drug Administration.

But U.S. District Judge Richard Leon of the District of Columbia, in a 32 page opinion, found that the FDA has no authority to regulate electronic cigarettes and can't stop them from entering the country.

"While the 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," Leon wrote.

Smoking Everywhere claims that their product is designed to replicate
smoking without the harmful side-effects of a traditional cigarette.

The electronic cigarette functions by vaporizing a liquid nicotine mixture that is derived naturally from tobacco plants. The user inhales vapor without the fire, flame, tar, carbon monoxide, ash or smell of traditional cigarettes.

Walt Addison Linscott, lead counsel for Smoking Everywhere, said the attorney general's lawsuit is flawed.

As a tobacco product, the electronic cigarette must be appropriately compared to other tobacco products," Lindscott told Legal Newsline. "The appropriate benchmark for comparison of the electronic cigarette is legally a traditional burning tobacco cigarette that has more than 4000 combustion by-products and toxins, the vast majority of which simply can not be present in an electronic cigarette that does not use combustion as its method of nicotine delivery."

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