NJOY Sues FDA Over Delayed Ruling on Flavored Disposable Vapes

Aug.24.2025
NJOY Sues FDA Over Delayed Ruling on Flavored Disposable Vapes
Altria’s subsidiary NJOY has sued the U.S. Food and Drug Administration (FDA) and the U.S. Department of Health and Human Services (HHS), alleging prolonged delays in ruling on its appeal for flavored disposable vapes. NJOY argues the products are identical to authorized versions and backed by scientific data and safeguards, yet the review has taken far beyond statutory limits, blocking lawful products while illicit ones flood the market.

Key Points

 

Lawsuit Filed

  • NJOY (Altria subsidiary) and Louisiana retailers filed suit on Aug. 21, 2025, in the Western District of Louisiana.

 

Defendants Named

  • FDA, U.S. Department of Health and Human Services (HHS), FDA Commissioner Martin Makary, HHS Secretary Robert F. Kennedy Jr., Acting CTP Director Bret Koplow.

 

Case Background

  • FDA denied flavored NJOY DAILY PMTAs in June 2022 but approved tobacco and later menthol variants; the appeal has been pending for nearly three years.

 

Evidence Submitted

  • Longitudinal cohort study (3,600+ adults) showing higher switching for flavored products;
  • Youth perception studies;
  • Strict age-verification and sales restrictions;
  • FDA staff assessments supporting NJOY’s data.

 

Main Allegations

  • Inconsistent standards, disregard of evidence, refusal to weigh safeguards, excessive delay, and market imbalance favoring illicit products.

 


 

 

[2Firsts, August 24, 2025] NJOY, LLC, a subsidiary of Altria, together with several Louisiana-based distributors and retailers, filed a lawsuit on August 21 in the U.S. District Court for the Western District of Louisiana, Lafayette Division. The defendants include the U.S. Food and Drug Administration (FDA), the U.S. Department of Health and Human Services (HHS), as well as FDA Commissioner Martin Makary, HHS Secretary Robert F. Kennedy, Jr., and Acting Director of FDA’s Center for Tobacco Products (CTP) Bret Koplow.

 

The plaintiffs allege that the FDA has failed to act on NJOY’s supervisory appeal concerning its flavored disposable vape products, leaving the matter unresolved for nearly three years. According to NJOY, this delay has kept lawful products out of the market while illicit flavored disposables have flourished across the United States.

 

 

Case Background

 

 

In March 2020, NJOY submitted eight PMTAs for NJOY DAILY products, including two tobacco, two menthol, and four flavored variants: Blue + Black Berry 4.5%, EXTRA Blue + Black Berry 6%, Watermelon 4.5%, and Tropical Twist 4.5%.

 

In June 2022, the FDA granted marketing orders for the tobacco variant (and later for menthol) but denied the flavored applications. NJOY stressed that these products are identical in design and composition to the authorized versions, differing only in flavor. The company filed a supervisory appeal in October 2022, which remains undecided to date.

 

NJOY Sues FDA Over Delayed Ruling on Flavored Disposable Vapes
Case Information | Screenshot from justia.com

 

 

NJOY’s Evidence

 

 

To support its applications and appeal, NJOY submitted a broad package of scientific evidence and market restrictions:

 

  • Longitudinal Cohort Study: Followed over 3,600 adult DAILY users, showing that about one in five achieved complete switching after three months. Flavored variants demonstrated higher switching rates than tobacco and menthol.

 

  • Switching Rate Data: The three flavored variants showed 40–113% higher complete switching at three months and 29–68% higher at six months compared to tobacco/menthol.

 

  • Youth Studies: Among 1,000 adolescents aged 13–17, use of NJOY products showed no statistically significant increase; in a perception survey of 3,000+ teens, overall interest was low with only minor differences between flavors.

 

  • Market Restrictions: NJOY committed to selling only through licensed retailers, enforcing strict online and offline age-verification, and implementing additional sales and reporting limits.

 

  • Internal FDA Documents: Obtained via FOIA, internal assessments from FDA’s Office of Health Communication and epidemiology staff concluded that NJOY’s restrictions exceeded prior benchmarks and that flavored variants were associated with higher switching rates.

 

 

NJOY’s Main Allegations Against FDA

 

 

According to the complaint, NJOY argues that FDA’s handling of its applications and appeal is flawed in several key respects:

 

  • Inconsistent Standards: Tobacco and menthol products were authorized, while compositionally identical flavored products were denied.

 

  • Disregard of Evidence: FDA failed to give due weight to NJOY’s longitudinal data and youth-specific studies.

 

  • Rejection of Safeguards: NJOY’s stringent marketing and age-verification measures were not meaningfully considered.

 

  • Procedural Delay: The supervisory appeal has been pending since October 2022, effectively creating a “de facto flavor ban.”

 

  • Market Imbalance: Lawful products remain sidelined, while illicit flavored disposables dominate U.S. retail.

 

NJOY also underscored the severe imbalance in timing. Under the Family Smoking Prevention and Tobacco Control Act, FDA is expected to act on PMTAs within 180 days. Instead, NJOY’s flavored applications were denied only after 802 days4.5 times the statutory period. Even more striking, its supervisory appeal has now been pending for 1,003 days, or 5.6 times longer than the statutory timeframe. NJOY contends that a review based on the existing record, typically involving only internal coordination and administrative file review, should not take longer than the initial PMTA assessment.

 

 

NJOY–FDA Key Timeline of Interactions

 

 

  • 2020-03-30: NJOY submits eight DAILY PMTAs, including four flavored variants.
  • 2020-12-17: FDA issues deficiency letter, asking for stronger evidence on flavored variants.
  • 2021-03-04: NJOY responds, providing six-month longitudinal data.
  • 2022-06-10: FDA issues MDOs for flavored products; grants MGO for tobacco variant.
  • 2022-10-17: NJOY files supervisory appeal.
  • 2022-11-07: Then-CTP Director Brian King accepts the appeal and delegates to Shawn Fultz.
  • 2023-01-11: NJOY holds virtual meeting with FDA/CTP; no substantive outcome.
  • 2024-01-17, 2025-04-22, 2025-07-30: NJOY sends three follow-up letters urging resolution; no response.
  • 2025-05: Bret Koplow appointed Acting Director of CTP.
  • 2025-08-21: Lawsuit formally filed in the Western District of Louisiana.

 

NJOY Sues FDA Over Delayed Ruling on Flavored Disposable Vapes

 

 

NJOY’s Requested Relief

 

 

The plaintiffs ask the court to declare FDA’s delay unlawful under the Administrative Procedure Act, to compel the agency via injunction or writ of mandamus to issue a prompt decision on the supervisory appeal, and to award costs and attorney’s fees while retaining jurisdiction for oversight.

 

2Firsts will continue to closely follow this case and provide timely updates.

 

Cover image generated by ChatGPT

Nearly Half of Seoul Vape Vending Machines Bypassed by Fake IDs, Raising Youth Access Concerns
Nearly Half of Seoul Vape Vending Machines Bypassed by Fake IDs, Raising Youth Access Concerns
Seoul city authorities inspected 339 tobacco vending machines at e-cigarette retailers and found that 168, or 49.5%, allowed purchases using fake IDs, showing that unmanned retail terminals and adult-verification systems remain a major enforcement gap after e-cigarettes were brought under tobacco regulation.
Market
Jul.03 by 2Firsts Perspectives
UK Councils Seize More Than 1.3 Million Non-Compliant Vapes One Year After Disposable Ban
UK Councils Seize More Than 1.3 Million Non-Compliant Vapes One Year After Disposable Ban
One year after the UK disposable vape ban came into force, local authorities continue to seize illegal and non-compliant vaping products. FOI data compiled by nicotine retailer Northerner shows more than 1.3 million products were seized between June 2025 and May 2026, with Bolton recording the highest number of seizures and Swansea reporting the highest estimated value.
Jul.21
Germany Expands Take-Back Rules for Disposable Vapes From July 1
Germany Expands Take-Back Rules for Disposable Vapes From July 1
Germany has expanded take-back obligations for disposable vapes from July 1, 2026, requiring consumers to be able to return used devices at stores that sell such products, including kiosks, petrol stations and vape shops, as e-cigarette regulation extends from sales to waste management and lithium-battery safety.
Market
Jul.06 by 2Firsts Perspectives
UK HMRC Plans 30,000 Retail Enforcement Actions as Illegal Tobacco and Vape Sellers Face Tougher Crackdown
UK HMRC Plans 30,000 Retail Enforcement Actions as Illegal Tobacco and Vape Sellers Face Tougher Crackdown
The UK government has announced that HM Revenue & Customs (HMRC) will carry out more than 30,000 interventions targeting businesses and retail premises during the 2026-2027 financial year. The actions will focus on tax fraud, illegal goods sales and businesses involved in unlawful activities through retail channels. The government said illegal tobacco and illegal vape sales remain areas of concern. The move shows that UK enforcement against illegal nicotine products is expanding from import and supply channels toward retail-level oversight, alongside the upcoming introduction of the Vaping Products Duty.
Jul.24
PMI Global Communications Chief Moira Gilchrist: Why AI Matters More Than Ever in the Smoke-Free Transition
PMI Global Communications Chief Moira Gilchrist: Why AI Matters More Than Ever in the Smoke-Free Transition
Philip Morris International (PMI) Chief Global Communications Officer Moira Gilchrist said artificial intelligence is changing how companies understand audiences, manage owned information channels and communicate business transformation. PMI is using AI-generated audience personas to test messaging while optimizing its corporate website and other owned channels for large language models. As PMI continues its transition from cigarettes toward smoke-free products, Gilchrist said owned data and corporate channels are becoming increasingly important in demonstrating the scale of that transformation.
Aug.26
Product | BAT Launches glo Hyper pro+ in Japan, Upgrading the Hyper Platform With Faster Start and Smart Device Management
Product | BAT Launches glo Hyper pro+ in Japan, Upgrading the Hyper Platform With Faster Start and Smart Device Management
British American Tobacco Japan (BAT Japan) has introduced glo Hyper pro+, an upgraded device within the existing glo Hyper platform. The device adds QuickStart™ rapid heating technology, an EasyView™ display and maintenance notification features to improve daily usability. Launched in Japan on July 13, 2026, glo Hyper pro+ maintains compatibility with existing Hyper-format tobacco sticks, including neo, Lucky Strike and KENT.
Jul.30