Supreme Court Navigates Vape-Venue Dispute as Tobacco and Vape Manufacturers Challenge FDA

Supreme Court vape venue dispute

The Supreme Court recently heard arguments in a case involving tobacco and vape manufacturers battling the Food and Drug Administration (FDA) over the agency’s denial of marketing authorization for flavored e-cigarette products. While these companies have found little success in most appeals courts, they have enjoyed modest victories in the Fifth Circuit, which covers Louisiana, Mississippi, and Texas, and is widely regarded as the most conservative court in the country.

The government argues that the concentration of cases in the Fifth Circuit amounts to “forum shopping” and should not be permitted. Under the Family Smoking Prevention and Tobacco Control Act, manufacturers must obtain FDA approval before introducing new tobacco products into interstate commerce, and appeals must be filed in either the plaintiff’s home circuit or the D.C. Circuit.

R.J. Reynolds Vapor (RJR), a subsidiary of British American Tobacco based in North Carolina, has struggled to challenge the FDA in its home Fourth Circuit. In response, RJR joined several retailers it supplies in Texas and Mississippi and filed its lawsuit in the more favorable Fifth Circuit. This court has diverged from seven other circuits, including the Fourth and D.C. Circuits, which upheld the FDA’s bans on flavored e-cigarettes.

The FDA contends that the venue should be determined by the location of manufacturers, not the numerous retailers. Assistant to the Solicitor General Vivek Suri noted that in 2024, approximately 75% of e-cigarette cases were filed in the Fifth Circuit by out-of-circuit applicants seeking to exploit the tactic approved in the lower court’s decision.

During the argument session, the Supreme Court justices expressed skepticism about completely barring local retailers from challenging marketing denials that keep flavored vapes off store shelves. However, their primary concern centered on the potential ripple effects of the case, with some amici claiming that the ruling could impact as many as 650 similar review provisions.

Justice Ketanji Brown Jackson suggested that companies were exploiting loopholes to undermine Congress’ venue limitations, while Justice Samuel Alito inquired about the number of statutes that would be subject to the government’s proposed limitation.

The government advocated for a narrow ruling limited to the Tobacco Control Act, which appeared to be the most probable outcome. However, Justice Neil Gorsuch questioned whether this approach would effectively address the government’s complaint, as manufacturers could employ other tactics, such as funding retailer suits, to bring cases before their preferred court.

Matthew Ma
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