November 30, 2016
As many readers are aware, this past Spring the FDA issued a Final Rule concluding that e-cigarettes are deemed “tobacco products” and thus fall under the FDA’s authority to regulate. Earlier this month, the Central District of California determined that all but one state claim brought by consumers seeking stricter labeling and warnings were preempted by FDA guidance on labeling e-cigarettes. In re Fontem US, Inc., 2016 WL 6520142 (C.D. Cal. Nov. 1, 2016).
A group of consumers from California, Illinois, and New York sued companies, including Lorillard Tobacco Co., Reynolds American Inc., and Fontem US Inc., who make and market e-cigarettes under the brand name BLU. The consumers claimed that the defendants violated state laws by warning users only of the dangers of nicotine and failing to warn about the presence of chemicals such as formaldehyde and the risks users incur by taking deeper breaths when smoking e-cigarettes.