U.S. District Court of Appeals for the District of Columbia rejected the FDA’s bid to have the full court review a three-judge panel’s earlier decision rejecting the agency’s effort to regulate electronic cigarettes as drug devices.

The Food and Drug Administration (FDA) now has the option of asking the U.S. Supreme Court to take up the issue. An agency spokesman said on 24 January that it is evaluating the latest court ruling "and considering its legal and regulatory options," according to The Wall Street Journal.
The FDA contends that e-cigarettes are drug or medical devices that require preapproval from the agency – similar to nicotine gums, patches or sprays. Two years ago the FDA began intercepting e-cigarette shipments from China, sparking a lawsuit by the industry. In January 2010 a district judge granted a preliminary injunction to e-cigarette distributors who sued the FDA; the appellate panel upheld this ruling.
The news of the court’s rejection comes as New York State lawmakers are eyeing a bill that would ban e-cigarettes in the state until there is some action by the FDA. (pi)