Last week we discussed the news that the FDA was planning on issuing a unilateral order for Juul to cease selling all of its vaping products in the United States. On Thursday, the FDA made good on that threat and issued the order. Juul immediately appealed the order to buy time and determine if the FDA even had the authority to take such an action. On Friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia agreed that the appeal had merit and put the FDA’s order on hold while it reviews the case. Of course, that doesn’t mean that Juul is in the clear yet, but they still have some time to try to maneuver. (Associated Press)

Juul can continue to sell its electronic cigarettes, at least for now, after a federal appeals court on Friday temporarily blocked a government ban.

Juul filed an emergency motion earlier Friday, seeking a temporary hold while it appeals the sales ban.

The e-cigarette maker had asked the court to pause what it called an “extraordinary and unlawful action” by the Food and Drug Administration that would have required it to immediately halt its business.

The FDA said Thursday that Juul must stop selling its vaping device and its tobacco and menthol-flavored cartridges.

It’s hard to see how the FDA prevails here because of the inconsistency of their position regarding Juul specifically and the approach they’ve taken with some of Juul’s competitors. There doesn’t seem to be any question that some unforeseen health concerns caused by vaping have emerged and the attractiveness of the practice to children is clearly problematic.

But if that’s the case and vaping is so dangerous, why is only Juul being summarily ordered to cease all of their domestic sales. The FDA actually approved a similar vaping product from R.J. Reynolds, one of the largest tobacco companies. Can they argue that those vaping products are somehow safer than Juuls?

Also, as Juul pointed out when filing the appeal, the FDA came at this out of the blue after a two-year study and application period and described a “critical and urgent public interest” in immediately halting the sale of Juul’s products. But that urgent public interest didn’t appear to exist for the past two years. And again, where is the urgent public interest in banning vaping equipment from R.J. Reynolds?

The public relations campaign against Juul has been more than effective without any government intervention. As we previously discussed, Juul’s market valuation dropped to $1.6 billion last year from a peak of $15 billion in 2018. They reported millions of dollars in losses last year. The FDA may be beating a dead horse at this point. But real issue is ensuring that the government is treating all of the horses the same and not singling out Juul for special treatment.

I’m not here to defend Juul or any other vaping products because I think we need more data to determine if these products are actually safe and are helping people quit smoking. But if the federal government is going to start bringing down the hammer like this, it has to do it equally across the board.

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