Small Vaping Companies Sue the FDA Again; U.S. Supreme Court May Hear the Case

Moose Jooce and others are suing the U.S. Food and Drug Administration (FDA), challenging the agency's determination rules on the grounds of violating appointment clauses and the First Amendment. This lawsuit consolidates three independent complaints from small e-cigarette companies, with a favorable ruling for the FDA issued by a U.S. District Court judge in February 2020. On December 1, 2020, a three-judge panel of the D.C. Circuit Court of Appeals upheld the previous ruling.

Attorneys from the Pacific Legal Foundation represent the vaping companies and submitted a petition for a writ of certiorari to the Supreme Court at the end of February, requesting a review of the previous appeal based solely on the appointment clause (they have abandoned part of the First Amendment claim).

The petition submitted to the Supreme Court is the second such filing from the vaping industry interest group recently.

Attorneys from the DOJ have requested two extensions of the deadline, with their response now due on June 2. For the case to be reviewed, four of the nine Supreme Court justices must agree to grant the writ. Only 2-4% of appeals are accepted by the court each year. If the court declines to hear the case, the lower court's decision will stand.

Amicus briefs have been submitted by the Cato Institute and the Reason Foundation to support the vaping industry petitioners; Senator Rand Paul and Ron Johnson, Congressman Jim Baird; and 36 industry and consumer advocacy organizations, including CASAA, SFATA, and the American Vaping Association.

The petition submitted to the Supreme Court is the second such filing from the vaping industry interest group recently. In December 2020, attorneys representing Big Time Vapes and the U.S. Vaping Association (USVA) from Mississippi requested the Supreme Court to hear their challenge to the Tobacco Control Act (in this case, the DOJ representing the FDA had just made a brief response to the petition).