FDA contends that the public interest in health and safety weighs in favor of denying preliminary relief because, by enforcing the FDCA as it sees fit, FDA protects the public from unsafe and ineffective drugs. FDA further contends that the potential harm to other interested parties or to the public interest, should the court grant the preliminary injunction and allow the unapproved electronic cigarettes into the market, would far outweigh the economic harm to plaintiffs, should the court deny the preliminary injunction. I disagree. While FDA's interest in protecting public health and safety is, in the abstract, paramount to plaintiffs' purely economic interests, given the particular facts and circumstances of this case, I am not convinced that the
threat to the public interest in general or to third parties in particular is as great as FDA suggests.
Together, both Smoking Everywhere and njoy have already sold hundreds of thousands of electronic cigarettes, yet FDA cites no evidence that those electronic cigarettes have endangered anyone.