Stock Markets July 14, 2026 02:59 PM

Public health groups sue FDA over policy allowing some unauthorized vaping products to remain on market

Lawsuit challenges May guidance that pauses enforcement for e-cigarettes and nicotine pouches with applications under review

By Derek Hwang
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A coalition of health organizations, pediatric groups and affected parents filed suit in U.S. District Court in Maryland to overturn an FDA guidance issued in May that they say permits unauthorized e-cigarettes and nicotine pouches to remain available without the marketing authorization required by law. Plaintiffs contend the policy sidesteps required public procedures and could leave thousands of flavored products popular with young people on the market indefinitely.

Public health groups sue FDA over policy allowing some unauthorized vaping products to remain on market
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Key Points

  • A coalition of public health organizations, pediatricians and parents filed suit in U.S. District Court in Maryland challenging FDA guidance issued in May that pauses enforcement against certain unauthorized e-cigarettes and nicotine pouch products while marketing applications are under review.
  • Plaintiffs argue the guidance unlawfully allows products to stay on the market without the marketing authorization required by the Tobacco Control Act and could permit thousands of flavored e-cigarettes and nicotine pouches popular with young people to be sold indefinitely.
  • The suit alleges procedural failings by the FDA, saying the agency bypassed the Administrative Procedure Act's notice-and-comment requirements and failed to justify its policy shift; the case will be heard in the same Maryland court that overturned a prior FDA policy in 2017.

A group of public health organizations, pediatricians and parents filed a lawsuit on Tuesday against the U.S. Food and Drug Administration, disputing a recent agency guidance that they say improperly allows certain vaping products and nicotine pouches to be sold without the statutorily required marketing authorization.

The complaint, lodged in U.S. District Court in Maryland, targets guidance published by the FDA in May. That guidance states the agency will not prioritize enforcement against certain unauthorized e-cigarettes and nicotine pouch products when the manufacturers have marketing applications pending review.

The plaintiffs include a coalition of national public health and medical organizations as well as individual plaintiffs. Listed in the suit are:

  • Campaign for Tobacco-Free Kids
  • American Academy of Pediatrics
  • American Cancer Society Cancer Action Network
  • American Heart Association
  • American Lung Association
  • Truth Initiative
  • Parents Against Vaping
  • A pediatrician and a parent whose children became addicted to nicotine after using flavored e-cigarettes

According to the complaint, the plaintiffs argue the FDA's guidance unlawfully permits products to remain on the market without obtaining the marketing authorization mandated by the Tobacco Control Act. The filing asserts that, under the new policy, thousands of unauthorized items - including flavored e-cigarettes and nicotine pouches that have become popular with young people - could continue to be sold without clear time limits.

The suit also challenges the procedural steps the agency took in issuing the guidance. Plaintiffs contend the FDA bypassed the notice-and-comment requirements under the Administrative Procedure Act and failed to provide sufficient justification for the apparent change in enforcement approach.

Another element of the legal challenge targets the FDA's plan to publish a list of products the agency indicates it does not intend to prioritize for enforcement. The plaintiffs argue that making such a list public would effectively facilitate the sale and distribution of unauthorized products.

The case will be heard in the same Maryland federal court that previously struck down an FDA policy in 2017 that had allowed many e-cigarettes to remain on the market without authorization. The complaint notes that history as part of the context for the current challenge.

The FDA did not immediately respond to a request for comment.


Summary of the filing: Plaintiffs seek judicial review of the FDA's May guidance, arguing it conflicts with the Tobacco Control Act and procedural requirements under the Administrative Procedure Act, and that it risks prolonging consumer access to unauthorized flavored e-cigarettes and nicotine pouches.

Risks

  • Legal and regulatory uncertainty for manufacturers of e-cigarettes and nicotine pouches if courts rule the FDA's guidance unlawful; this impacts the vaping and consumer tobacco product sectors.
  • Potential continuation of sales of flavored e-cigarettes and nicotine pouches popular with youth if the guidance remains in place, increasing public health and youth addiction concerns and affecting healthcare and public advocacy sectors.
  • Administrative process risk stemming from the alleged failure to follow the Administrative Procedure Act, which could force regulatory reversals or additional rulemaking processes for the FDA and affect market participants dependent on enforcement clarity.

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