Triton Distribution's request for a rehearing of its appeal of the FDA's marketing denial orders (MDOs) for its flavored e-liquids, as well as those of its sister firm Vapetasia, has been granted by the Fifth Circuit Court of Appeals. Triton's appeal was rejected by the initial three-judge Fifth Circuit panel last July, with a 2-1 decision.
The initial ruling against Triton and Vapetasia is vacated as a result of the decision to allow an en banc rehearing of the case, and a panel of all Fifth Circuit judges currently in office will determine the matter.
Triton filed a petition with the court for en banc and panel rehearings of the case following the July ruling. (Rehashing the original hearing with the same three judges would be known as a panel rehearing.) Judges of the court voted in favor of an en banc rehearing.
It is quite uncommon to have a second shot at the law following an unfavorable panel judgment, as Triton has done, especially since the court allowed for an en banc rehearing. Just 44 cases, for instance, were decided en banc among all the rulings made by the 12 U.S. Circuit Courts of Appeals in 2010. That amounted to a mere 0.14% of all appeals nationwide that were decided on their merits during that particular year.
Attorney Eric Heyer for Triton says the court has requested briefs from Triton by February 22. The FDA must respond by March 24. The week of May 15 is set aside for oral arguments. Now that the first panel was not privy to information, Triton can present specifics of hitherto unreleased FDA documents and internal discussions for the court to consider.
Another three-judge panel on the same court unanimously stayed Triton's MDO in October 2021, calling the FDA's imposition of new evidentiary standards for vape industry applicants a "surprise switcheroo" and concluding that the Triton appeal was likely to succeed on its merits. This decision came before the three-judge panel ruled 2-1 against Triton in July 2022. Thus, we may be certain that Triton will win at least four Fifth Circuit decisions (three of whom stayed the MDO and one of whom dissented from the merits decision). (In addition, the en banc rehearing was approved by at least nine of the court's sixteen sitting justices.)
Wages & White Lion Investments LLC, a Texas-based company that operates under the name Triton Distribution, produces e-liquid both on its own behalf and on behalf of other manufacturers. Boiler Maker, Chewy Clouds, Vape Hooligan, Suicide Bunny, and Teleos were a some of the brands that were covered by Triton's MDO.
