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  • FDA Outlines Risk-Based Approach to ENDS Flavors

    FDA Outlines Risk-Based Approach to ENDS Flavors

    Yesterday (March 9), the U.S. Food and Drug Administration (FDA) issued a draft guidance outlining how it will evaluate flavored electronic nicotine delivery systems (ENDS) under the Premarket Tobacco Product Application (PMTA) process. The document clarifies the agency’s current thinking on determining whether such products are “appropriate for the protection of the public health” (APPH), the legal standard under the Federal Food, Drug, and Cosmetic Act. Although non-binding, the guidance emphasizes that applicants must demonstrate a net public health benefit, meaning any potential benefits to adult smokers, such as helping them switch from or reduce combustible cigarette use, must outweigh the risks to non-users, particularly youth.

    The guidance adopts a “risk-proportionate” approach based on the level of youth appeal associated with different flavors. According to the FDA, high-risk flavors such as fruit, candy, dessert, and other sweet varieties face a particularly high evidentiary burden. They must demonstrate significant added benefits for adult smokers compared with tobacco-flavored products. Lower-risk flavors, including menthol, mint, and some novel flavors such as spices, may require a smaller demonstrated adult benefit to meet the APPH standard. Applicants are encouraged to provide scientifically valid evidence, including sensory perception studies, consumer response assessments, and population-level data, to evaluate both youth appeal and potential adult benefits.

    The agency also addressed mitigation strategies designed to reduce youth access, including device access restrictions such as fingerprint authentication or geofencing. While these technologies may form part of a broader youth-prevention strategy, the FDA said they are generally insufficient on their own to offset the risks associated with highly youth-appealing flavors. The guidance reinforces the agency’s product-specific, evidence-based review process, with the most scrutiny applied to flavored products that present the greatest risk of youth initiation.

  • Holman Defends CTP’s ‘Notable Improvement’

    Holman Defends CTP’s ‘Notable Improvement’

    On Feb. 24, the Wall Street Journal’s editorial board published a piece titled, “Who’s in charge of the FDA?” arguing that internal tensions at the U.S. Food and Drug Administration could be undermining efforts across all departments. The piece points to decisions affecting emerging products and suggests a broader debate within the FDA over how flexible the approval process should be.

    In response, Matthew R. Holman, vice president of U.S. Scientific Engagement & Regulatory Strategy at Philip Morris International and a former chief scientist at the FDA’s Center for Tobacco Products, wrote a letter that the WSJ published yesterday (March 5), saying that despite criticism and organizational challenges facing the FDA, the organization — and the CTP in particular — has shown notable improvement.

    “Over the past year, the FDA’s Center for Tobacco Products has become a notable bright spot — delivering real results for an agency working through significant institutional challenges,” he wrote. “The CTP has been responsive to industry experts and congressional leaders.”

    Responding to concerns raised in a 2022 Reagan-Udall Foundation report and congressional hearings about transparency and a backlog of smoke-free product applications, Holman said the center has become more receptive to industry and lawmakers, pointing to actions such as a pilot program to fast-track nicotine pouch reviews and upcoming advisory committee hearings on smoke-free products.

    “The CTP has taken several notable actions in the past year and is poised for more positive developments,” Holman wrote. “There’s still more work to be done to ensure the CTP is meeting its mission and properly regulating tobacco products in the marketplace with a focus on authorizing scientifically substantiated smoke-free products. But the progress we have seen in the first year of this administration is notable.”

  • Fifth Circuit Affirms FDA’s Vape Rule

    Fifth Circuit Affirms FDA’s Vape Rule

    The U.S. Court of Appeals for the Fifth Circuit upheld a 2021 rule issued by the U.S. Food and Drug Administration requiring manufacturers seeking premarket tobacco product authorization to investigate and disclose health effects data, according to Law 360. In a unanimous opinion, the three-judge panel found the agency complied with the Regulatory Flexibility Act by reasonably certifying that the rule would not have a significant economic impact on a substantial number of small entities, affirming a February 2025 summary judgment in FDA’s favor.

    Plaintiffs, including e-liquid manufacturers and the United States Vaping Association, argued the FDA improperly relied on economic analysis from its 2016 deeming rule and failed to consider less burdensome alternatives. The court rejected those claims, holding that the 2016 assessment provided an adequate factual basis and that key requirements — such as submitting all known health-risk information — are mandated by the Tobacco Control Act and cannot be waived by regulation. The decision leaves the 2021 PMTA rule intact in Kealani Distribution LLC et al. v. FDA.

  • FDA COO Says Balance is the ‘Gold Standard’

    FDA COO Says Balance is the ‘Gold Standard’

    In an open letter today (Feb. 26), FDA Deputy Commissioner for Operations and Chief Operating Officer Dr. Barclay Butler underscored the FDA’s dual mandate to promote regulatory transparency while rigorously safeguarding sensitive commercial and personal data submitted by regulated industries. Titled, “Why Protecting Confidential Information is Key to the FDA’s ‘Gold Standard,’” his remarks highlighted the agency’s role as both public health watchdog and custodian of proprietary information, emphasizing that while the Freedom of Information Act supports disclosure, statutes such as the Trade Secrets Act and Privacy Act require strict confidentiality around trade secrets, confidential commercial information (CCI), personal health data, and law enforcement materials.

    Barclay reiterated that manufacturing processes, product formulas, financial data, and other proprietary submissions remain legally protected, a subject of particular importance tobacco and nicotine product companies navigating the FDA’s premarket review pathways. He also stressed the importance of shielding adverse event reports, inspection records, and internal deliberative documents to preserve investigative integrity and candid scientific review. Barclay said that improper disclosure can carry criminal liability and undermine market fairness, particularly given the market-moving potential of regulatory decisions. He said the FDA’s strict ethics and insider trading safeguards are central to maintaining trust, institutional integrity, and a level playing field across regulated sectors.

  • Atlas IoT Gets USPTO Grant for Age-Restricted Vape Technology

    Atlas IoT Gets USPTO Grant for Age-Restricted Vape Technology

    Atlas IoT announced that it secured a patent grant from the United States Patent and Trademark Office for an age-restricted device and system designed for electronic nicotine delivery systems, positioning the technology as a potential pathway to strengthen regulatory compliance and support broader adult-focused flavor approvals. The company’s standalone system uses AI-powered age verification to confirm users are 21 or older without requiring app downloads or storing personal data, followed by a one-time thumbprint enrollment that serves as the device’s unlocking mechanism. A secondary bioimpedance sensor embedded in the mouthpiece is designed to prevent use by minors, creating a dual-verification process intended to block unauthorized access.

    Atlas IoT said it has requested a Q-Submission meeting with the U.S. Food and Drug Administration to discuss a Component Premarket Tobacco Product Application covering the device’s core technology, with plans to partner with e-liquid manufacturers that would file their own PMTAs for compliant flavored pods. The company also emphasized domestic manufacturing and FDA-registered filling operations for its replaceable pods, contrasting its compliance-focused model with the illicit disposable vape market. Atlas IoT said that, if authorized, its platform could establish a new standard for age-restricted ENDS products in the regulated U.S. market.

  • 22nd Century Reports Momentum for VLN Products

    22nd Century Reports Momentum for VLN Products

    22nd Century Group touted early sales momentum for its VLN low-nicotine cigarettes, distributing approximately 8,800 cartons to about 1,700 new retail outlets nationwide in the fourth quarter of 2025, with initial sell-through data indicating growing adoption across its 22nd Century VLN, Pinnacle VLN, and Smoker Friendly VLN brands. The company said expanding retail placement across convenience stores, wholesalers, and independent chains supports its plan to exceed 5,000 points of distribution in 2026.

    22nd Century positioned its progress alongside regulatory developments, including a January 2025 proposed rule by the U.S. Food and Drug Administration to cap nicotine levels in cigarettes at 0.7 mg per gram of tobacco, and broader global support for nicotine reduction under the World Health Organization Framework Convention on Tobacco Control.

  • K&H Announces Agenda for Industry Law Symposium

    K&H Announces Agenda for Industry Law Symposium

    Keller and Heckman LLP announced the agenda for its 10th Annual E-Vapor, Nicotine, and Tobacco Law Symposium, scheduled for May 4–5, 2026, in Las Vegas, Nevada, ahead of the CHAMPS Trade Show. The two-day seminar will feature the firm’s attorneys alongside industry and scientific guest speakers, offering in-depth insights into legal, regulatory and scientific developments affecting tobacco, nicotine and CBD/hemp product manufacturers, suppliers, distributors and retailers. Organizers also reminded prospective attendees that the super early-bird registration rate expires February 20.

  • Enorama Sues FDA for Disparate Pouch PMTAs

    Enorama Sues FDA for Disparate Pouch PMTAs

    Enorama Pharma Inc. filed a lawsuit against the U.S. Food and Drug Administration in federal court in Washington, D.C., alleging the agency unlawfully imposed costly premarket tobacco application (PMTA) requirements on its nicotine oral pouches. In a complaint filed Feb. 17, the company argues the FDA violated the Regulatory Flexibility Act and Administrative Procedure Act by subjecting pouches to the same regulatory framework as combustible tobacco without properly assessing the impact on small businesses. Enorama contends that although the FDA previously suggested publicly available data could support applications, it now requires product-specific scientific studies, dramatically increasing costs.

    According to the filing, the FDA estimated bundled application costs between $181,686 and $2 million, but Enorama claims actual expenses range from $3 million to more than $15 million — forcing some manufacturers to exit the market. The company also alleges unequal treatment, asserting that larger competitors such as Philip Morris International and Altria Group have been allowed to market similar nicotine pouch products despite pending applications, while Enorama received a refusal-to-file letter. Attorney Eric N. Heyer of Thompson Hine LLP said the company plans to seek a preliminary injunction to halt the FDA’s action.

  • VTA ‘Disappointed’ by Lack of Progress from FDA Roundtable

    VTA ‘Disappointed’ by Lack of Progress from FDA Roundtable

    The Vapor Technology Association said it welcomed the chance to participate in a recent roundtable hosted by the U.S. Food and Drug Administration focused on premarket tobacco product application (PMTA) submissions for electronic nicotine delivery systems (ENDS), calling the meeting an opportunity for small businesses to engage directly with regulators. In a statement, VTA Executive Director Tony Abboud said industry representatives advocated for a more transparent, standards-based regulatory framework that would allow companies to invest in vapor technology and navigate product reviews with clearer scientific expectations.

    Abboud said VTA was encouraged by comments from FDA Commissioner Marty Makary acknowledging the need for predictability in regulatory standards but expressed frustration that some agency officials supported maintaining flexible or undefined scientific benchmarks.

    “Small businesses made it completely clear that they wanted and needed transparent and objective scientific standards governing how vape products should be made and how they should perform,” Abboud said. “Unfortunately, we were disappointed by so many FDA representatives throughout the meeting who either argued for continued scientific ambiguity or completely rejected standards. Their comments signaled a lack of alignment among FDA leadership on providing clear and predictable scientific standards or guidance for our industry – or even benchmarks that would ensure product and consumer safety. We received no guarantee of additional clarity on the broken and opaque PMTA rule and process, which has been used to prevent access to the products that Americans who smoke want and need to quit smoking deadly cigarettes.” 

    The association argued that clearer regulatory guidance would align with broader free-market principles supported by Donald Trump’s policy agenda.

  • U.S. Vape Block on Imports Could Cut Illicits by a Third: BAT

    U.S. Vape Block on Imports Could Cut Illicits by a Third: BAT

    A potential U.S. ban on imports of certain disposable e-cigarettes could reduce illegal vape sales by as much as one-third, according to British American Tobacco CEO Tadeu Marroco. BAT estimates unauthorized products, largely manufactured in China, account for roughly 70% of U.S. e-cigarette sales, undermining both regulated vape brands and traditional cigarette businesses. The company is pursuing two cases before the U.S. International Trade Commission (ITC) seeking to block imports of products that infringe its patents. An ITC judge previously recommended an exclusion order, with a final decision expected in March, followed by a 60-day presidential review.

    “What we want to see in the US is a level playing field because in a level playing field, we know that we can win,” Marroco said.

    Marroco cautioned that any market impact would likely be delayed due to existing supply chains and inventory levels, suggesting significant effects may not occur until 2027. He also indicated that the U.S. Food and Drug Administration could consider alternative regulatory approaches for e-cigarettes, potentially including flavored products, as the agency evaluates ways to streamline product authorization processes.