Nicopure Labs, LLC v. FDA
- Case Date: 2/20/2018
- Project Name: Criminalization of Free Enterprise - Business Civil Liberties Program
On February 20, 2018, WLF urged the U.S. Court of Appeals for the DC Circuit to overturn an FDA regulation that restricts the truthful speech of e-cigarette manufacturers and retailers. In a brief filed in the case, WLF argues that FDA’s Deeming Rule, which requires FDA’s preapproval before manufacturers and retailers may inform the public of vapor products’ uncontested health advantages over traditional tobacco products, constitutes a prior restraint on legally protected speech in violation of the First Amendment. When a coalition of vapor industry manufacturers and retailers brought a First Amendment challenge against FDA, the federal trial court granted judgment in FDA’s favor. Although the court explicitly found that the Deeming Rule constitutes a “clear restriction on truthful and non-misleading speech,” it nonetheless upheld the Rule under an unusually relaxed application of the Central Hudson test. WLF urges reversal of that decision under a “heightened scrutiny” standard.
|Awaiting oral argument.|
More Information and Downloads:
2/20/2018: Download the Brief
Broadcasting & Cable: FDA Rule on Vaping Claims Raises Speech Issues, Says WLF