DOJ Limits FDA Power to Fine Illegal Tobacco Retailers

The U.S. Department of Justice has declined to appeal a federal court ruling that restricts the Food and Drug Administration (FDA) from imposing civil money penalties on retailers selling unauthorized tobacco products. The decision weakens federal oversight of illegal flavored e-cigarettes and nicotine pouches.

The U.S. Solicitor General notified House Speaker Mike Johnson that the government will not seek Supreme Court review of Texas Tobacco Barn v. HHS. In that case, the U.S. Court of Appeals for the Fifth Circuit ruled that FDA administrative fines violate the constitutional right to a jury trial.

The Fifth Circuit based its decision on the 2024 Supreme Court ruling in SEC v. Jarkesy, which limited administrative penalties in securities fraud cases. Public health advocates criticize the DOJ’s shift, noting the government previously defended the FDA’s enforcement authority under the “public rights” exception for public health protection.

Advocates Warn of Risks to Youth Health

Public health organizations argue the decision removes a vital deterrent against the sale of unauthorized, youth-appealing flavored vapes. The Campaign for Tobacco-Free Kids stated the move “benefits the tobacco industry and harms public health” by weakening retail enforcement.

This development follows a controversial FDA guidance issued in May, which allowed certain e-cigarettes and nicotine pouches to remain on the market without standard scientific reviews. A coalition of pediatricians and parents has filed a federal lawsuit challenging that guidance.

Potential Penalties for Foreign Importers Remain

While domestic retailers may evade administrative fines, the Solicitor General’s letter indicated that civil money penalties against foreign companies importing unauthorized products might still be constitutional.

Federal law requires all tobacco manufacturers, domestic and foreign, to obtain FDA authorization before marketing new products. Health advocates urge the government to enforce these rules strictly to prevent illegal products from reaching retail shelves.

Source: DOJ Decision Weakens FDA’s Ability to Impose Monetary Penalties on Retailers that Sell Unauthorized Tobacco Products

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Matthew Ma

Marketing at Ecigator

With over a decade of experience in the e-cigarette industry, Matthew Ma is a seasoned expert in both the manufacturing and usage aspects of vaping products. His extensive background has provided him with a deep understanding of the intricacies and evolving dynamics of e-cigarettes.