They are arguing (but not very convincingly, IMHO) that Judge Leon's decision to grant the injuncton was flawed. Julie or Yolanda can correct me if I'm wrong about this, but I saw three elements to Judge Leon's decision: Law (actual wording of portions of the FDCA and tobacco Act laws), Case Law (Brown v. Williamson case), and Evidence presented so far (FDA's claim of harm to public health was unsupported by the evidence.)
So the Appeal briefs seem to be trying to prove that Judge Leon misinterpreted the law and the case law and shore up their argument that the products present a danger to public health. They repeated a lot of their earlier unsubstantiated fears (sold to minors, etc.), adding only the results of their lab testing as new evidence of harm that wasn't presented before.
I do hope the the Plaintiff's attorneys jump all over that one. njoy has two documents they can submit as evidence that the FDA's lab tests did not prove the products are dangerous: One is a critique of how the FDA conducted and reported the test. The other is a subsequent test on conducted by an FDA-approved lab that showed njoy vapor does not contain any substances that are carcinogenic, despite the fact that minute traces of four potential carcinogens (TSNAs) are in the liquid. Only one makes it into the vapor that one is not known to actually cause cancer.
I hope the attorneys throw in the fact that since the products are being used as substitutes for tobacco cigarettes, it would have been more appropriate for the FDA to conduct tests that compare the vapor to smoke. I'd love to see a judge order FDA to go conduct those tests.
So the Appeal briefs seem to be trying to prove that Judge Leon misinterpreted the law and the case law and shore up their argument that the products present a danger to public health. They repeated a lot of their earlier unsubstantiated fears (sold to minors, etc.), adding only the results of their lab testing as new evidence of harm that wasn't presented before.
I do hope the the Plaintiff's attorneys jump all over that one. njoy has two documents they can submit as evidence that the FDA's lab tests did not prove the products are dangerous: One is a critique of how the FDA conducted and reported the test. The other is a subsequent test on conducted by an FDA-approved lab that showed njoy vapor does not contain any substances that are carcinogenic, despite the fact that minute traces of four potential carcinogens (TSNAs) are in the liquid. Only one makes it into the vapor that one is not known to actually cause cancer.
I hope the attorneys throw in the fact that since the products are being used as substitutes for tobacco cigarettes, it would have been more appropriate for the FDA to conduct tests that compare the vapor to smoke. I'd love to see a judge order FDA to go conduct those tests.
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Shhh...Don't wake the Banzhaf... 
