The Supreme Court agreed Friday to wade into another case implicating federal approval of vapes at the Biden administration’s request.
The Justice Department hopes to crack down on looser rules that make it easier for vape companies to funnel challenges through the nation’s most conservative federal appeals court, rather than another venue.
The 5th U.S. Circuit Court of Appeals has been more sympathetic to the industry, making it an attractive place for companies to contest their products being denied.
“This Court should grant review to put a stop to that practice,” U.S. Solicitor General Elizabeth Prelogar wrote in court filings.
Under federal law, companies can challenge the Food and Drug Administration (FDA) denying a new tobacco product in Washington, D.C., or where the company’s principal place of business is located.
The 5th Circuit’s rule effectively enables it to host any tobacco company’s challenge, so long as its lawsuit is joined by a convenience store or other retail seller within the 5th Circuit’s borders — which spans Louisiana, Mississippi and Texas.
“The Fifth Circuit’s decision permits retail sellers of a tobacco product who have no right of judicial review under the Act to nevertheless gain review; effectively nullifies the Act’s limits on venue; facilitates blatant forum shopping; and undermines the precedents of other circuits,” Prelogar wrote.
The case arose after the FDA denied R.J. Reynolds Vapor Company’s request to introduce three flavored vapes on the market. The FDA said the company failed to meet federal requirements concerning tobacco products’ marketing, but the company contends the decision was arbitrary and capricious.
The company is based in North Carolina, but the federal appeals courts located there and in D.C. already had precedent on the books unfavorable to the manufacturer.
So it instead filed its challenge in the 5th Circuit alongside Avail Vapor Texas and the Mississippi Petroleum Marketers an.d Convenience Stores Association. The federal government attempted to move venues, but the 5th Circuit said the additional challengers meant the case was properly brought.
“There is no circuit conflict over the meaning of this venue provision. And other vehicle problems abound,” the company wrote in court filings urging the justices to turn away the appeal.
No matter which way the justices rule, they are not expected to address the merits of the FDA’s denial. The Supreme Court only took up the question of whether the 5th Circuit was a proper venue.
But in a separate case the court has already taken up for its upcoming term, the justices will review the FDA’s denial of other vape products from coming on the market.
Decisions in both cases are expected by next summer.
