A group of vape shops in five U.S. states on Tuesday announced a trio of lawsuits challenging a rule adopted by the Food and Drug Administration that allows the regulator to treat e-cigarettes and similar devices like cigarettes.
The vape shops, represented by the Pacific Legal Foundation conservative legal group, in lawsuits filed in federal courts in Texas, Minnesota and Washington, D.C., argued the 2016 rule was unconstitutional.
The shops located in California, Michigan, Minnesota, North Dakota, and Texas argue that the so-called “Deeming Rule” that deems e-cigarettes to be tobacco products was not legally adopted because it was issued by a career FDA employee, rather than an officer appointed by the president.
The lawsuits also contend that the rule violates the U.S. Constitution’s free speech protections by requiring vape retailers to obtain the FDA’s approval before advertising information about their products’ health and related effects.
“These regulations don’t just harm small businesses and consumers, they undermine constitutional safeguards for individual liberty,” Thomas Berry, a lawyer with Pacific Legal Foundation, said in a statement.
The FDA declined to comment.
The lawsuits come amid legal and legislative efforts by tobacco and vaping companies to derail the FDA rule, which was adopted during Democratic President Barack Obama’s administration.
In 2009, Congress passed a law allowing the FDA to extend its oversight to all tobacco products. The 2016 rule brought e-cigarettes, cigars, pipe tobacco and hookah tobacco in line with existing rules for cigarettes and smokeless tobacco.
As a result, companies are now required to submit e-cigarettes and other newer tobacco products for government approval, list their ingredients and place health warnings on packages and in advertisements.
E-cigarettes heat nicotine-laced liquid into vapor but do not contain tobacco.
Big tobacco companies such as Altria Group Inc see vaping products as a promising business line and have lobbied alongside their smaller e-cigarette counterparts against the rule.
The vape shops that filed the lawsuits announced on Tuesday contend that they were being subjected to burdensome rules that had hurt their ability to attract customers and restricted how that could advertise their businesses.