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Second Circuit Review: Upholding the FDA on E-Cigarette Marketing
July 28, 2023
Litigation of counsel Martin Flumenbaum and firm Chairman Brad Karp’s latest Second Circuit Review column, “Upholding the FDA on E-Cigarette Marketing,” appeared in the July 28 issue of the New York Law Journal. The authors discuss the Second Circuit’s recent decision in Magellan Technology v. United States Food and Drug Administration, in which it unanimously denied the plaintiff’s petition for review of the FDA’s decision to reject an application by the electronic nicotine delivery systems manufacturer to market its fruit-and-dessert-flavored replaceable cartridges, or “pods.” The court agreed with the FDA that there was insufficient evidence that marketing the pods would appropriately protect public health. Although the court’s ruling aligns with recent decisions in several other circuit courts upholding the FDA’s premarket reviews of new tobacco products, an upcoming Fifth Circuit decision on the issue could cement a recent split with the Eleventh Circuit and lead to the Supreme Court’s review of the FDA’s premarket tobacco applications regime. Litigation associate David Wechsler assisted in the preparation of this column.
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