Supreme Court backs vape industry against FDA

The Supreme Court rejected the government's attempt to restrict legal avenues for appealing Food and Drug Administration (FDA) decisions denying clearance to market e-cigarettes, including those with flavors that health officials say have contributed to an epidemic of vaping among young people.

The decision was 7-2 in favor and was written by Judge Amy Coney Barrett. Specifically, the justices ruled that tobacco company RJ Reynolds was entitled to ask a conservative-leaning appeals court, located out of its North Carolina headquarters, to review the FDA's denial of its application to sell menthol cigarettes.

"In 2024, by our count … about 75 percent of e-cigarette cases were filed … in the 5th Circuit, all of them by out-of-circuit applicants trying to use the tactic," said Vivek Suri, assistant solicitor general representing the FDA, in arguments in January reported by The Washington Post.

Meanwhile, Ryan J. Watson, an attorney for RJ Reynolds, argued before the judges that the company had the right to file an appeal in the Fifth Circuit, since the law authorizes "any person adversely affected" by a denial to challenge it in both the D.C. Circuit and the circuit where it resides or has its principal place of business.