Is a Vaping Appeal Soon to Be Heard by the Supreme Court?

Two vape producers have petitioned the Supreme Court to examine their unsuccessful appeals of FDA marketing refusal orders. Both recently petitioned the Supreme Court for writs of certiorari.

The petitioners: Magellan Technology and Lotus Vaping Technologies

Magellan Technology, Inc. petitioned the Supreme Court on January 22 to examine its appeal, which was refused by the Second Circuit Court of Appeals on June 16 of last year. The appeal disputed MDOs issued in September 2021 for 12 non-tobacco-flavored refill pods for the company's Juno pod vaporizer.

Lotus Vaping Technologies, LLC, filed a petition with the Supreme Court on Friday, February 9 (so recently that the supreme docket has not yet been updated). Lotus got MDOs in September 2021 for more than 200 bottled e-liquids, including many brands, several non-tobacco flavors, and a variety of nicotine levels. On July 7, 2023, the Ninth Circuit Court dismissed the company's appeal (which was combined with Nude Nicotine, Inc).

Magellan is based in western New York state, whereas Lotus is in Idaho. Attorney Eric Heyer of the Thompson Hine legal firm in Washington, D.C., represents both firms. Heyer has handled a number of appeals for vaping industry clients.

Dozens of vaping manufacturers and distributors have filed federal court challenges to FDA decisions. Many cases are still pending.

The circuit court split is growing

To be considered for review, four of the nine Supreme Court justices must agree to issue a writ of certiorari (Latin for "to be certain"). Each year, the Supreme Court accepts just around two to four percent of petitions submitted for review. If the court dismisses the petitions, the lower court verdicts will stand.

So yet, no vaping-related challenge has received a Supreme Court review. All of the instances mentioned below were refused without explanation. However, some experts feel the FDA's vaping laws are ready for review by the Supreme Court, owing to the recent Fifth Circuit Court judgment against the FDA in the Triton Distribution appeal, which implies a wider divergence in circuit court opinions than previously existed.

Five circuits upheld FDA rejections. However, the Fifth Circuit ruling, combined with an Eleventh Circuit decision in favor of six vape manufacturers in 2022 and a partial victory for Fontem US (Blu) in the District of Columbia Circuit last year, may be enough to persuade four Supreme Court justices to accept the Magellan or Lotus appeal.

The FDA might potentially ask the Supreme Court to reconsider its Fifth Circuit setback. This was a possibility raised by Case Western Reserve University School of Law professor Jonathan Adler in a Reason blog post on the Triton ruling . Adler, a respected legal expert, has written extensively on vaping restrictions.

Lawyers for the tobacco business appear to believe that the Supreme Court will take action soon. On February 1, R.J. Reynolds filed a move with the Fifth Circuit to suspend proceedings in its appeal of Vuse menthol refill MDOs "pending resolution of any further proceedings" in the Triton Distribution case, "including before the Supreme Court of the United States."

Previous vaping-related petitions to the Supreme Court

As indicated above, past vaping petitions have struck out so far at the Supreme Court:

The court dismissed two cases brought by R.J. Reynolds challenged California's flavor prohibitions. On January 8, the court rejected to hear Reynolds' complaint against the State of California over the statewide prohibition on in-person sales of flavored vapes and tobacco products. In February 2023, the court denied Reynolds' appeal to a similar restriction imposed by Los Angeles County.

Last October, the Supreme Court refused AVAIL Vapor's plea for a reconsideration of its MDO appeal, which was denied by the Fourth Circuit in December 2021. The petition was denied without comment.

The Supreme Court declined to consider Breeze Smoke's motion for a stay pending appeal of its MDO in December 2021, after the Sixth Circuit Court of Appeals had already dismissed it.

In June 2021, the Supreme Court dismissed a motion to rehear an appeal from a consolidated complaint filed by many small vape firms contesting the FDA Deeming Rule. The Pacific Legal Foundation filed and appealed the case of Moose Jooce et al. v. FDA et al.

In June 2021, the Supreme Court declined to hear a Tobacco Control Act lawsuit from Mississippi-based Big Time Vapes and the United States Vaping Association (USVA). The Tobacco Control Act of 2009 provided the FDA the ability to regulate tobacco and nicotine products. Big Time Vapes is said to be the first vaping firm to appeal a lower court decision to the Supreme Court.