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 days—4.5 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

UK Vape Maker Riot Enters Clacton By-Election to Fight Government 'White Packaging' Proposals
UK Vape Maker Riot Enters Clacton By-Election to Fight Government 'White Packaging' Proposals
British e-liquid manufacturer Riot Labs has introduced a fictional “candidate” called Riot Man around the Clacton parliamentary by-election, seeking to mobilize consumers and retailers against parts of the UK government’s proposed restrictions on vape packaging, device appearance and retail displays. Riot Man is not listed as an official candidate.
Aug.12
Elf Bar Vape Explosion and Amputation Claim Spurs Coverage Suit, U.S. Insurer MUSIC Seeks Ruling It Owes No Duty to Defend or Indemnify Distributor i5
Elf Bar Vape Explosion and Amputation Claim Spurs Coverage Suit, U.S. Insurer MUSIC Seeks Ruling It Owes No Duty to Defend or Indemnify Distributor i5
Mesa Underwriters Specialty Insurance Company has asked a federal court in Washington to declare that it has no duty to defend or indemnify vape distributor i5 Distribution in a product liability case involving an Elf Bar BC5000. The plaintiff alleges that the disposable vape caught fire and exploded in his pocket, causing severe burns and ultimately requiring an above-the-knee amputation of his left leg. MUSIC is relying on a tobacco, nicotine or nicotine replacement products exclusion and a premises limitation endorsement. The court has not ruled on the coverage dispute.
News
Sep.10
JAMA Study: U.S. Vape Directories Fail to Sustainably Curb Unlisted Sales as Product Shifts May Redistribute Brand Share 2Firsts Recommended
JAMA Study: U.S. Vape Directories Fail to Sustainably Curb Unlisted Sales as Product Shifts May Redistribute Brand Share 2Firsts Recommended
A study by CDC Foundation researchers found no sustained decline in e-cigarette sales across Alabama, Oklahoma and Louisiana, the first three U.S. states to implement e-cigarette directory laws. Louisiana initially saw a significant sales decline, followed by a rebound and a persistent reduction in product availability. Sales also shifted from nontobacco-flavored disposables toward prefilled cartridges, with Vuse Alto driving much of the increase in menthol cartridges. By April 2025, unlisted products still accounted for more than half of e-cigarette nicotine sales in all three states.
Sep.18
GSTHR Estimates 200 Million People Use Non-Combustible Nicotine Products as 28 Countries Show Rising Use Alongside Falling Smoking Rates
GSTHR Estimates 200 Million People Use Non-Combustible Nicotine Products as 28 Countries Show Rising Use Alongside Falling Smoking Rates
The Global State of Tobacco Harm Reduction, a project operated by Knowledge·Action·Change, estimates that about 200 million people worldwide use non-combustible nicotine products including vapes, heated tobacco, nicotine pouches and snus. Its 2026 report says use of these products rose alongside declining smoking rates in 28 countries it analyzed. The data do not establish that all 200 million users have quit smoking, nor do they prove a direct causal relationship. GSTHR also says regulatory restrictions on the products continue to expand in many markets.
Sep.10
China’s Zhengzhou Tobacco Research Institute develops end-to-end heated tobacco analysis to trace aerosol compound origins
China’s Zhengzhou Tobacco Research Institute develops end-to-end heated tobacco analysis to trace aerosol compound origins
The Zhengzhou Tobacco Research Institute of China National Tobacco Corporation has filed a patent application for an end-to-end method to analyze the migration and transformation of chemical compounds in heated tobacco products. Using GC-Orbitrap/MS non-targeted analysis, the method compares tobacco substrate and aerosol samples to distinguish compounds transferred directly from the substrate from those newly formed during heating, while also calculating transfer rates. In an example involving nine heated tobacco products, the patent identified 17 newly formed thermal decomposition compounds and 38 transferred compounds.
Aug.13
Zhang Xiaotang Appointed Deputy Director of China’s Tobacco Regulator, Adding Another Finance-Background Official to Top Leadership
Zhang Xiaotang Appointed Deputy Director of China’s Tobacco Regulator, Adding Another Finance-Background Official to Top Leadership
China’s State Council has appointed Zhang Xiaotang as deputy director of the State Tobacco Monopoly Administration, with the regulator’s official website now listing him as a Party leadership group member and deputy director. Zhang previously led Hebei China Tobacco and earlier headed the STMA’s finance and audit department. His appointment follows the elevation earlier this year of former tax official Yao Laiying to head the STMA, adding another senior official with a strong fiscal or financial-management background to China Tobacco’s top leadership in 2026.
News
Sep.20