Sep 29

Court makes unannounced move and rules on vaping lawsuit

What seemed to start off as a normal day on Thursday September 28th 2017, did not end that way at all. At a pivotal point of the vaping industry and the animosity that has been surrounding it, a surprise ruling came out of nowhere from the United States District Court of the Southern District of West Virginia.

So what exactly happened and what does it mean? 

The final ruling of the argument stage of the lawsuit has been pending for some time now as both sides mounted arguments for their side. The FDA’s motion in the final argument was to dismiss all 5 charges brought forth in the lawsuit by Larry W. Faircloth. What appeared to start off as a successful campaign by the FDA did not go well in its favor leaving the door wide open for the arena and stage of a courtroom fight.

The judge clearly stated on page 8 of the ruling, he based his rulings on ‘facial’ and not ‘factual’ challenges the FDA brought forth. The most shocking surprise fo the rulings and what left a door wide open for the industry is Argument 4 of the lawsuit. This argument challenges that consumers have the rights under the First Amendment to receive fair and truthful advertising by the vaping industry as well as being allowed to receive free samples. While this will still have to be fought in a courtroom, it does allow just that. A courtroom fight. This is something that no other action in the industry has been able to reach at this point.

In a short statement on Thursday by attorney Patrick Lane who is counsel for Faircloth had stated, “The court issued an order today in the case. It is good and bad on its surface but a huge step forward for this lawsuit’.

Even though the FDA was apparently successful at their initial attempts to get part of the suit dismissed, it may be short lived. Based on the fact the rulings were based ‘facial’ and not ‘factual’ the chances of a ‘contest and appeal’ seems to be the most ideal path to take.

So what is next for the lawsuit? 

Major steps will need to be taken. Those steps will need to go forward at a fast pace considering it is apparent that rulings can come without a notice. The final court hearing date is not set at this time but it should be noted a date can be set by the judge at any point. The fortunate part of the court hearing would be ideal if the case does not see a courtroom until the new judge is in the seat and in place.

Two things are evident at this point. The FDA is not happy regarding the ruling against them, nor the fact they lost one of their major arguments. They will try to defend this and build a case to win that argument in the courtroom.

On the other side of things, the Faircloth lawsuit will work towards 2 goals. The first will be to build and strengthen their First Amendment argument for the courtroom battle. The second goal will be to contest the facial rulings of the other charges and have them admitted back into the lawsuit; which at that point become part of the courtroom battle as well.

“In May of 2016 prior to filing the lawsuit, I tried to reach out to the FDA and have them reconsider their deeming regulations. After being told by them that they would do what they wanted to do; i expressed my opposition. I was told to take my best shot by one of their own, and my blunt response was that if they wanted a war, they could have one. Here we are nearly 16 months later, and I would like to think that even now my words to them keeps circling around in their heads.” Larry W Faircloth

While no direct actions of strategy can be specifically brought forward to the public, it is assured that a plan of action was already in the works.

“Upon receiving the ruling, my attorney and I spent hours throughout the day and into the evening going back and forth on courses of actions as well as evidence that has been gathered that were not even used in the ‘facial’ rulings. We will use the opportunity of the ruling that is in our favor to proceed forward while working towards bringing the other rulings back through contesting actions. I personally see this as huge win for the Vaping Industry today. It is a major step forward because it isn’t often we get to see things go in favor of vaping; as they tend to go in favor of the political regimes and bureaucratically appointed agencies who are against this industry. I do see a ground fight ahead with all of this; but I am no stranger to rolling up my sleeves and facing opposition. In fact, I have been saying for nearly six months that this battle needed to be fought in a courtroom and not by rulings and dismissals.” Faircloth stated.

What exactly does the ruling say? To some it may be latin, and to others it will be the sign of hope they have been waiting for.


View and Download the Ruling Here! 

What can be done at this point by vapers? First and foremost is the #VapeUnity. At this point it is pivotal to end any infighting or divisions and pull together as a whole and community. This industry has created not only a business model and economic standing it has gone further and created a community and culture. Secondly, across social media there are 10 major groups gearing up to help with putting funding towards the courtroom fight of the lawsuit. But what of those who do not participate and wish to donate directly to the suit? There is also a campaign set up for that as well and listed below.


Donate today to the Lawsuit for Vaping. CLICK HERE!


We must all remember the basis of why we fight for this industry. It is not only for the 9 million Americans who have converted to vaping as a less harmful option to smoking, but it is also to reach the estimated 42 million smokers who still currently use cigarettes. We also fight to keep the option open for future generations to allow them a less harmful environment and longer healthier lifestyle. It is time we bring awareness to the those that have misconceptions about this industry and have tried to paint it a dismal color.