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Notice of Appeal Filed in Deeming Rule Challenge by Right to be Smoke-Free Coalition and Nicopure Labs

By Azim Chowdhury & Eric P. Gotting on September 11, 2017
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On August 30, 2017, the Right to be Smoke-Free (RSF) Coalition, a non-profit, industry-led trade association of vapor businesses dedicated to advocating for reasonable and responsible laws and regulations, joined Nicopure Labs LLC in appealing the recent decision in Nicopure Labs, LLC and Right to be Smoke-Free Coalition et al. v. Food and Drug Administration et al., Civ. No. 1:16-cv-0878-ABJ to the U.S. Court of Appeals for the District of Columbia.  The lawsuit challenges aspects of FDA’s Deeming Regulation and the Tobacco Control Act as they are being applied to the vapor industry.  The RSF Coalition respectfully disagrees with the conclusions reached by the lower court and believes that both the law and the facts compel a different result.

While FDA’s recent announcement acknowledging the tobacco harm reduction potential of vapor products and extending the compliance policy deadline for Premarket Tobacco Product Applications (PMTAs) for pre-August 8, 2016 vapor products to August 8, 2022 is welcome news, the RSF Coalition believes that there remains much worth fighting for on behalf of the industry – which still faces effectively being banned in a few short years.

“There is no greater risk to public health than traditional combustible tobacco use-related morbidity and mortality”, said Scott Eley, RSF Coalition Director and Co-Founder of coalition member, NicQuid. “We believe vapor products can help make tobacco-related death and disease part of America’s past and not it’s future. While we fully support all efforts to prevent access to vapor products to kids, we would hate to see a future where FDA’s overly burdensome regulatory approach prohibits access to these products by adult smokers looking for an alternative to their tobacco addiction.”

Since the Deeming Rule took effect on August 8, 2016, the restrictions on vapor products have been even more onerous than combustible cigarettes, most of which are grandfathered and exempt from FDA’s premarket review requirements. Among other things, vapor companies today cannot legally introduce new products, or improve the safety and quality of their existing products, without FDA PMTA authorization; distribute free samples to adults; or make truthful statements about the relative safety of their products.

The RSF Coalition and Nicopure Labs are being represented in the appeal by Keller and Heckman LLP Partners Eric Gotting and Azim Chowdhury. For more information on the lawsuit and to contribute to the RSF Coalition appeal efforts, visit www.r2bsmokefree.org.

Photo of Azim Chowdhury Azim Chowdhury

Azim Chowdhury is a regulatory and public policy attorney with a focus on vapor, nicotine and tobacco product regulation. He is a Partner in Keller and Heckman’s nationally-ranked food and drug law practice.

Mr. Chowdhury advises domestic and foreign corporations in matters of…

Azim Chowdhury is a regulatory and public policy attorney with a focus on vapor, nicotine and tobacco product regulation. He is a Partner in Keller and Heckman’s nationally-ranked food and drug law practice.

Mr. Chowdhury advises domestic and foreign corporations in matters of Food and Drug Administration (FDA) and international regulatory compliance. In particular, he has developed expertise in tobacco and vapor product regulation relating to the implementation of the Family Smoking Prevention and Tobacco Control Act, and spearheaded the Tobacco and E-Vapor practice at Keller and Heckman. Specifically, Mr. Chowdhury has experience representing tobacco, e-cigarette and e-liquid manufacturers, distributors, retailers, suppliers and trade associations in matters of FDA, state and global regulatory compliance. He also assists corporations in establishing clearances for food and drug additives in the U.S., Canada, and European Union, with an emphasis on indirect additives used in food-contact materials.

Mr. Chowdhury has authored and edited numerous articles and publications, including Tobacco Regulation and Compliance: An Essential Resource, FDA Regulation of Tobacco: A Comprehensive Guide – An FDLI Primer and Tobacco and Nicotine Delivery: Regulation and Compliance, 2nd Edition. He is a frequent contributor to the Food and Drug Law Institute’s (FDLI) Update Magazine and has served on the Editorial Advisory Board of the Food and Drug Law Journal.  In addition, he has been interviewed in the U.S. News and World Reports Best Lawyers Edition (2016) and was named one of “10 Names to Know in the Vape World” in the October 2015 issue of Vape Magazine. Mr. Chowdhury received the 2018 National Law Review Go-To Thought Leadership Award for his consistent coverage of the emerging issues surrounding vaping and e-cigarettes on Keller and Heckman’s law blog, The Continuum of Risk.  As an industry leader, Mr. Chowdhury frequently speaks at industry conferences and events.

Mr. Chowdhury also has an active pro bono practice through Keller and Heckman’s Pro Bono Program, and has been featured in the Baltimore Sun for successfully obtaining asylum in the United States for a family who fled their home country of El Salvador because of violence they faced from an international gang.

Prior to entering private practice, he served as a judicial law clerk on the Court of Special Appeals of Maryland. Mr. Chowdhury received a B.A. and B.S. from Johns Hopkins University, a MBA from the University of Maryland Robert H. Smith School of Business, and a JD, cum laude, from the University of Maryland School of Law.

Education: Johns Hopkins University (B.A., B.S., 2003); University of Maryland Robert H. Smith School of Business (M.B.A., 2006); University of Maryland School of Law (J.D., 2006, cum laude).

Admissions: District of Columbia; Maryland

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Photo of Eric P. Gotting Eric P. Gotting

Partner at Keller and Heckman LLP

Washington, DC

gotting@khlaw.com
+1 202.434.4269

To learn more about Eric’s practice areas, click here.
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