This standard, which the FDA refers to as APPH, means that the manufacturer must demonstrate that the product had met certain criteria that provides an adequate basis to conclude that, for public health purposes, it was better to allow marketing of the product than not allow it to be sold. A marketing authorization order does not mean that the FDA “approves” of the product, and the few applications that have thus far been issued marketing authorization orders by the FDA clearly state that the manufacturer may not state or suggest that the product has “FDA approval” or any similar message.
In several instances involving MDOs issued by the agency, the FDA has agreed with the manufacturers and subsequently rescinded the MDOs for these products or granted an agency stay regarding enforcement of the MDO, meaning that the products may continue to be marketed until the FDA completes further review of the PMTA. According to a non-comprehensive listing on the FDA’s website, as of Nov. 1, 2021, MDOs issued to the following applicants were either rescinded by the agency or the subject of an agency or court stay putting enforcement on hold:
- Avail Vapor
- Bidi Vapor
- My Vape Order
- Turning Point Brands
- Wages & White Lone Investments dba Triton Distribution
Again, the fact that the MDO may be rescinded or put on hold does not imply that their marketing will be granted in the future because the FDA must continue its thorough review of all PMTAs, including the applications for which MDOs have been rescinded. Retailers should be cautious when considering this information. Due to the sensitive and proprietary nature of the PMTA process, the FDA is not at liberty to provide some details on these matters and may be unable to publish information on the status for some products at all. Also, it should be noted that the MDOs at issue may not relate to all of the products for which the applicant submitted PMTAs.
If a retailer is unsure of whether a tobacco product or electronic nicotine product can legally be sold, the retailer should contact the manufacturer and request verification whether on the company’s PMTA has been denied, remains under review or has been authorized.