Will the Supreme Court be Listening to the Vaping Appeal?

Magellan Technology & Lotus Vaping Technologies are the petitioners.

On January 22, Magellan Technology, Inc. submitted a petition to the Supreme Court requesting that the court consider an appeal that the Second Circuit Court of Appeals had rejected on June 16 of last year. The appeal contested MDOs for 12 non-tobacco-flavored refill pods for the business's Juno pod vape, which were granted in September 2021.

On February 9, Lotus Vaping Technologies, LLC filed a petition with the high court. More than 200 bottled e-liquids with diverse brands, non-tobacco tastes, and nicotine levels were awarded MDOs to Lotus in September 2021. The Ninth Circuit Court rejected the company's appeal (combined with Nude Nicotine, Inc.) on July 7, 2023.

While Lotus is situated in Idaho, Magellan is headquartered in western New York State. Attorney Eric Heyer of the Thompson Hine legal firm in Washington, D.C., represents both firms. Heyer has dealt with a lot of appeals for customers in the vaping business.

Federal courts have heard challenges from dozens of vaping producers and distributors about FDA rejections. There are still a lot of open cases.

There is a developing divide in the circuit courts.

A writ of certiorari, which means "to be made certain" in Latin, must be granted by four of the nine justices of the Supreme Court in order for it to be accepted for review. Every year, the Supreme Court accepts about two to four percent of all petitions filed for consideration. The rulings of the subordinate courts will remain in effect if the court rejects the petitions.

No appeal pertaining to vaping has received a Supreme Court review so far. The following cases were all rejected without a statement.However, some analysts feel that the FDA's vaping rules are ready for a high court review. This is mainly because of the recent Fifth Circuit Court ruling that the FDA lost in the Triton Distribution appeal, which suggests a more significant divergence in circuit court views than there had been before.

FDA rejections have been upheld by five circuits. However, the Fifth Circuit decision, an Eleventh Circuit ruling in favor of six vape manufacturers in 2022, and Fontem US (Blu)'s partial victory in the District of Columbia Circuit last year may be sufficient to persuade four Supreme Court justices to grant the Lotus or Magellan appeal.

The FDA may potentially ask the Supreme Court to reconsider the Fifth Circuit's decision against it. Professor Jonathan Adler of Case Western Reserve University School of Law raised this possibility in a Reason blog post on the Triton ruling . Renowned legal scholar Adler has written a great deal on laws pertaining to vaping.

Lawyers for the tobacco industry also seem to believe that the Supreme Court may intervene shortly. In a petition submitted on February 1st, R.J. Reynolds requested that the Fifth Circuit halt its appeal of Vuse menthol refill MDOs "pending resolution of any further proceedings" in the Triton Distribution case, which includes a request to appear before the United States Supreme Court.

Earlier Supreme Court petitions pertaining to vaping

As previously noted, prior vaping petitioners have not been successful in their attempts to reach the Supreme Court.

The court dismissed R.J. Reynolds's two lawsuits contesting California's taste prohibitions. The complaint filed by Reynolds against the State of California over the state legislation that prohibits the in-person sale of tobacco and flavored e-cigarettes was not reviewed by the court on January 8. The court declined to consider Reynolds' appeal of a similar Los Angeles County prohibition in February 2023.

A request by AVAIL Vapor for a reconsideration of its MDO appeal, which the Fourth Circuit had rejected in December 2021, was turned down by the Supreme Court in October of last year. The petition was turned down without a reason given.

After the Sixth Circuit Court of Appeals had previously rejected a stay, Breeze Smoke applied for one , but the Supreme Court declined to consider the case in December 2021, awaiting an appeal of its MDO.

A petition to rehear an appeal of a combined complaint filed by many small vape firms contesting the FDA Deeming Rule was dismissed by the supreme court in June 2021. The Pacific Legal Foundation had filed and appealed that lawsuit, Moose Jooce, et al. v. FDA, et al.

Additionally, in June 2021, the United States Vaping Association (USVA) and Mississippi-based Big Time Vapes filed a challenge to the Tobacco Control Act , which the Supreme Court declined to consider. The 2009 law known as the Tobacco Control Act gave the FDA the power to control items that include nicotine and tobacco. It's thought that Big Time Vapes was the first vaping firm to file an appeal with the Supreme Court after losing in a lower court.