FDA E-Cig Rule Constitutional Despite Challenged Official’s Role

Former FDA Commissioner Scott Gottlieb effectively ratified a rule subjecting electronic cigarettes and other tobacco products to the same requirements as conventional cigarettes, eliminating any potential constitutional problem with the rule’s original approval by a lower-ranking official, the D.C. Circuit said Tuesday.

And a First Amendment challenge to the rule is foreclosed because the Food and Drug Administration prevailed on the issue in a prior case, Judge Judith W. Rogers said for the U.S. Court of Appeals for the District of Columbia Circuit.

Moose Jooce and several other e-cigarette makers and retailers, along with nonprofit group Tobacco Harm Reduction 4 ...