The Food and Drug Administration proposed back in April a set of new rules to regulate the sale and marketing of the multibillion-dollar e-cigarette business, an announcement that made headlines in newspapers throughout the United States. Over the last few years, the electronic nicotine delivery devices have significantly grown in popularity, which triggered numerous discussions about federal oversight or the necessity to establish rules in order to protect American consumers. If e-cigarettes will be treated as tobacco products from a regulatory standpoint, their sale to Americans under 18 years of age could be banned soon – an outlook that the e-cigarette industry is fighting based on the argument that their electronic products were considerably safer than conventional tobacco cigarettes. —
For Jeff Ifrah, attorney and founder of Ifrah Law, a law firm based in Washington, DC, the current development is not surprising. “Last September, 40 state attorneys general wrote to the FDA asking the agency to take all available measures to issue regulations on the advertising, ingredients, and sale to minors of e-cigs,” Ifrah reminds in an online commentary after the most recent FDA plans were made public. The FDA is now doing exactly that, based on the argument that e-cigarettes, even though they do not contain tobacco, are to be considered a “tobacco product”, since they contain nicotine and thus derive from tobacco. Supposedly the FDA’s intention is “to correct a misperception by consumers that tobacco products not regulated by FDA are safe alternatives to currently regulated tobacco products.”
Given the relative recent popularity of e-cigarettes and a lack of studies showing a need for regulation, the proposed rules by the FDA, which amongst others, would require e-cigarette manufacturers to print health warnings on the packaging of their products, might be premature. Despite discussions about advertising restrictions earlier this year when U.S. Senator Charles E. Schumer announced that he was co-sponsoring the "Protecting Children From Electronic Cigarette Advertising Act of 2014" in an effort to ban advertisements for e-cigs that target children, this aspect was not considered in the FDA’s recent proposal. “At this point the regulations do not seek to ban the use of flavored e-cigs or restrict online sales or advertising,” Jeff Ifrah points out. The Federal Trade Commission was carefully watching marketing efforts from the industry though, Ifrah explains, adding that the FTC had the ability to take action against companies if they have reason to believe they were engaging in deceptive advertising.
Jeff Ifrah is a white-collar criminal defense lawyer and litigator. He gained experience as a trial lawyer and officer in the U.S. Army’s Judge Advocate General’s Corps and as trial counsel to the U.S. Army Communications-Electronics Command at Fort Monmouth, followed by an appointment as a special assistant U.S. attorney in the U.S. Attorney’s office in New Jersey. In 2009 he founded his own law firm in Washington, D.C. where he and his team offer clients strategic and effective solutions. Chambers USA has recognized Jeff for three years in a row as one of America’s leading lawyers for litigation in the areas of White Collar Crime and Government Investigations.
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