Third Circuit Upholds Marketing Denial Orders for Liquid Labs’ Flavored E-Cigarette Products; Products Must Be Removed from Shelves

Public health continues to prevail in the majority of circuit court rulings on the FDA's marketing denial orders

October 28, 2022

WASHINGTON D.C. – October 28, 2022 – Today, the U.S. Court of Appeals for the Third Circuit ruled in favor of the U.S. Food and Drug Administration (FDA) in the case of Liquid Labs LLC v. FDA, upholding the agency’s marketing denial order (MDO) for Liquid Lab’s flavored e-cigarette products.  The FDA issued the MDO after finding that having the products on the market was not in the interest of public health.  ACS CAN filed an amicus curiae (or “friend of the court”) brief in support of the FDA when the manufacturer applied for an emergency stay of the MDO.

The American Cancer Society Cancer Action Network (ACS CAN) applauds the court’s decision, which requires Liquid Labs to end all sales of their flavored e-cigarette products in U.S. markets. E-cigarette use has skyrocketed in recent years—particularly among young people—and poses major risks to users’ health and their susceptibility to cancer.

“The FDA was doing its job when it issued an MDO to Liquid Labs requiring it to remove dangerous e-cigarettes with flavors including ‘OG Island Fusion’ and ‘Berry Au Lait’ from shelves,” said Lisa Lacasse, president of ACS CAN. “With kid-friendly flavors, this industry is clearly targeting young people to lure them into a lifetime of addiction, a well-proven strategy of Big Tobacco for decades. Additionally, there is no evidence that flavors have any role in helping people who smoke traditional cigarettes quit. What research does show us is kids who use e-cigarettes are more likely to use combustible cigarettes and smoking remains the number one cause of cancer death.”

Flavored e-cigarette products pose a serious public health risk, especially to young people, evidence that has been validated by four circuit courts across the country. ACS CAN urges the FDA to continue reining in Big Tobacco and the proliferation of flavored e-cigarette products. By working with local, state and federal lawmakers, ACS CAN is working fervently to help end the sale of flavored e-cigarettes products across the country.

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