The Supreme Court Vaping Scandal You Didn’t Know Existed

Did you know the Supreme Court is set to hear a case involving the federal approval of various vaping product…at the request of Joe Biden?

No, we didn’t, either.

The Justice Department is seeking to curtail a legal strategy employed by vape companies that allows them to funnel their challenges through the more industry-friendly 5th U.S. Circuit Court of Appeals, which covers Louisiana, Mississippi, and Texas.

At the heart of the case is whether companies can exploit a loophole allowing them to challenge FDA rulings in the 5th Circuit, even when the company itself is not based in the region. Under current federal law, companies can contest FDA denials either in Washington, D.C., or where their primary business is located. However, vape companies have been able to bring cases to the 5th Circuit by joining forces with local retail sellers within that court’s jurisdiction. This tactic has allowed companies to sidestep less favorable courts in other regions.

U.S. Solicitor General Elizabeth Prelogar argued in her court filings that this approach “facilitates blatant forum shopping” and undermines judicial consistency. She urged the Supreme Court to “put a stop to that practice,” which she claims effectively nullifies the law’s venue limitations.

The case originated when the FDA denied R.J. Reynolds Vapor Company’s application to market three flavored vape products. The FDA found that the company failed to meet federal marketing requirements for tobacco products, but R.J. Reynolds challenged the decision, calling it arbitrary. Instead of filing their case in the more restrictive courts in Washington, D.C., or North Carolina, where the company is based, they filed in the 5th Circuit, joining with Avail Vapor Texas and the Mississippi Petroleum Marketers and Convenience Stores Association.

The Biden administration attempted to transfer the case to a different court, but the 5th Circuit ruled that the involvement of local retailers justified keeping the case in their jurisdiction.

The Supreme Court’s ruling will not address the validity of the FDA’s denial but will determine whether the 5th Circuit is a legitimate venue for such cases. This decision, expected by next summer, could have broader implications for how businesses challenge federal regulations in the future.

In addition to this case, the Supreme Court is also set to review another FDA-related case during its upcoming term, which will focus on the agency’s decision to block other vape products from entering the market. Both rulings are anticipated to have significant impacts on the vaping industry and the FDA’s regulatory authority.