According to a report from Tobacco Reporter on January 21st, the United States Supreme Court heard oral arguments on Tuesday (21st) between British American Tobacco subsidiary RJR Vapor and the US Food and Drug Administration (FDA).
The FDA claims that the Tobacco Control Act allows cases to be tried in the District of Columbia Circuit Court, the jurisdiction where the plaintiff is located, or their primary place of business. However, the British-American Tobacco subsidiary, RJR Vapor, is attempting to challenge the FDA in the Fifth Circuit Court of Appeals in Louisiana.
RJR Vapor has teamed up with retailer Avail Vapor in Texas and a convenience store association in Mississippi that sells RJR products to submit a request for a review. Both states are in the Fifth Circuit.
The North Carolina headquarters of RJR Vapor falls under the Fourth Circuit, where an appeal against the FDA's rejection of their application has been dismissed. The Fifth Circuit Court had criticized the FDA for making it nearly impossible for companies to comply with regulations, calling it a "needle in a haystack" situation. RJR Vapor and retailers argue that regulations allow "any adversely affected person" to challenge the FDA, including retailers in the Fifth Circuit who may face closure risks due to selling Vuse products.
In 2016, the FDA rejected RJR Vapor's application, stating that the product was "not appropriate for protecting public health." The FDA believed that their decision primarily targeted manufacturers and had an indirect and insignificant impact on retailers. Allowing this case to be heard in the Fifth Circuit could potentially lead to regulatory evasion and encourage "forum shopping.
As a result, the FDA has filed a petition with the Supreme Court to review the case, and the Supreme Court agreed to hear it in October 2024. RJR Vapor argues that the Supreme Court does not have the authority to rule on such a "non-final" case and hopes that it will be dismissed while still pending.
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