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Supporting the Nicopure/R2B Lawsuit


Last year, Nicopure Labs and The Right to Be Smoke-Free Coalition (“R2B”) sued the FDA, arguing against portions of the Tobacco Control Act (TCA) and the FDA’s Deeming Rule as they are being applied to vapor products. The court ruled in favor of the FDA, so the plaintiffs filed an appeal in the D.C. Court of Appeals.

On appeal, Nicopure and R2B argue that “the Modified Risk Tobacco Product (MRTP) provision of the TCA, as well as the ban on free samples of vapor products, (1) violate the First Amendment of the U.S. Constitution, and (2) FDA was obligated to consider a less burdensome Premarket Tobacco Product Application (PMTA) process for vapor products while still protecting the public health.” A summary of these issues can be read here, and you can download the full brief here.

In support of that appeal, CASAA has filed an amicus brief with the court. An amicus brief is a legal document – filed by someone who is not a party to the action – that advises the court of relevant, additional information or arguments that they want the court to take into consideration.

In this case, CASAA is not really making legal arguments, but instead providing additional information from the consumer perspective, such as how consumers use vapor products, the importance of sampling, and why it is critically important that consumers be able to receive basic, truthful information from vapor companies about, among other things, the low-risk nature of vapor products (something that the TCA prohibits). The full CASAA amicus brief can be read here.

In addition to the amicus brief, CASAA disseminated information about the lawsuit on our web site, in our newsletter and on social media to raise awareness of the legal action. This alerted our 200,000+ members and nearly 83,000 followers on social media of the case.

On May 22nd, a fundraising page was launched by the plaintiffs, in coordination with a vaping media site, to help fund the appeal. After a request from CASAA, the fundraiser organizers made changes to the campaign to make it clear that while any donations are appreciated, this should be an industry-funded effort. At the end of the day, this is an industry-led lawsuit, and we believe industry is where the funding should come from. There are many large vapor product companies that have contributed little, if anything, to advocacy efforts, and it’s time for them to stop getting a free ride.

CASAA supports the lawsuit, and our only concern, which has been largely addressed by the organizers, is that consumers shouldn’t feel pressured to donate money to the fundraiser. Consumers are not a party to the lawsuit, and we have no input into legal strategies, nor are we privy to the kind of information that clients would ordinarily receive. And in a very real sense, consumers have been supporting this lawsuit since the beginning. CASAA, as an advocate for consumers, has provided support for the lawsuit, both at the district level and at the appellate level. Specifically, we’ve spent a considerable amount in legal fees not only for CASAA’s amicus brief, but also to assist other groups to file their own amicus briefs.

Of course, if consumers want to donate, they should absolutely feel free to do so. . . but they should do so understanding that it’s their choice, not their responsibility. If we, as consumers, have any responsibility in this regard, it’s to do business with responsible companies that are supporting advocacy efforts. Consumers can also help by alerting larger companies to the fundraising efforts, urging their shops to make their suppliers aware, and expressing their displeasure to large vapor companies that do not contribute.

A link to the industry fundraising campaign can be found here.