The Supreme Court made a 7-2 decision in favor of the vaping industry, rejecting the FDA’s bid to limit where companies can challenge product marketing denials.
RJ Reynolds Vapor Company can now proceed in the 5th US Circuit Court of Appeals to market its Vuse Alto flavored e-cigarette products by suing alongside retailers.
The big picture: The decision authored by Justice Amy Coney Barrett allows the company to proceed in the 5th US Circuit Court of Appeals, known as the nation’s most conservative appeals court.
- The 5th Circuit has been more friendly to the industry, but the company may still face challenges due to the harsh stance taken by the justices earlier in the term in a similar case.
Driving the news: The case centered on federal law allowing anyone adversely affected by the FDA’s denial of a tobacco or e-cigarette marketing application to petition the federal appeals court in Washington DC or where they have their principal place of business.
- RJ Reynolds is based in North Carolina and covered by the 4th US Circuit Court of Appeals, which rejected the company’s legal theory that the FDA acted arbitrarily and capriciously in denying the authorization.
Zoom in: In dissent, Justice Ketanji Brown Jackson argued that the statute does not allow retailers to sue, stating that within the detailed scheme for manufacturers to obtain authorization to market new tobacco products, retailers have no rights and play no role.
What we’re watching: The case now returns to the lower courts, and the companies may still face a challenge in getting their product approved, despite the Supreme Court’s decision.
