US Supreme Court Overturns Precedent, Impacting E-Cigarette Industry and FDA

Regulations by 2FIRSTS.ai
Jul.03.2024
US Supreme Court Overturns Precedent, Impacting E-Cigarette Industry and FDA
US Supreme Court overturns decades-old precedent, potentially changing FDA's power in regulating e-cigarette industry.

According to VAPING360, the US Supreme Court has overturned a decades-old precedent that nearly gave federal agencies an insurmountable advantage in defending their regulations against legal challenges. The court's decision in Loper Bright Enterprises v. Raimondo (and a related case, Relentless v. Department of Commerce) could impact pending challenges in the e-cigarette industry against FDA regulations, potentially leading to changes in how the FDA regulates e-cigarette products.

 

The Supreme Court's decision overturned the Chevron doctrine based on the 1984 case of Chevron v. Natural Resources Defense Council. The Chevron doctrine held that as long as an agency's interpretation is reasonable, the court should defer to the "expertise" of federal agencies in interpreting ambiguous laws that the agency needs to implement.

 

This decision could potentially impact legal challenges to the FDA's interpretation of the 2009 Family Smoking Prevention and Tobacco Control Act (TCA), which grants the agency broad authority to regulate nicotine and tobacco products. The TCA does not specifically mention e-cigarette products, which were not on the market in the United States when the law was passed.

 

However, the FDA used a provision in the Tobacco Control Act to issue the 2016 "Deeming Rule," granting the agency regulatory authority over e-cigarettes, nicotine pouches, and other products not described in the 2009 legislation. The "Deeming Rule" establishes a system for manufacturers to submit market applications for e-cigarettes and other nicotine products.

 

When the FDA received a large number of pre-market tobacco applications (PMTAs) from small e-cigarette manufacturers and realized it was unable to individually consider them as required by the Tobacco Control Act (TCA), the agency created the so-called "deadly defects" system, allowing it to issue millions of marketing denial orders (MDOs) for flavored e-cigarette products without conducting actual scientific review.

 

In a friend-of-the-court brief submitted to the Supreme Court last year by a group of e-cigarette companies and trade organizations, industry lawyers explained how the FDA has used Chevron deference to create a maze of an elusive (essentially undefined) standard.

 

They wrote that the FDA "has taken a one-size-fits-all approach, which has dramatically tipped the scales in one direction, effectively banning all non-tobacco flavors (such as mint and fruit) of ENDS products, and in the process, focusing primarily on underage use, at the expense of adult smokers. The FDA implemented this de facto ban not by requiring Congress to amend the TCA or by establishing tobacco product standards through public notice and comment rulemaking procedures as required by the APA, but by issuing a regulation that is not based on the text, structure, and context of the TCA.

 

Due to the courts' tendency to view most challenges to federal agency power through the lens of Chevron deference, federal district and appellate courts have granted the FDA broad latitude to effectively ban all flavors of e-cigarettes, even when applications have been submitted, by improvising standards.

 

The decision of the Supreme Court in "Loper Bright" will impact how Congress writes laws, how federal agencies enforce laws, and how courts interpret laws. It could result in future court decisions partially limiting the FDA's Tobacco Products Center, forcing tobacco regulatory agencies to carefully consider the interests of adult consumers when reviewing market applications.

 

We welcome news tips, article submissions, interview requests, or comments on this piece.

Please contact us at info@2firsts.com, or reach out to Alan Zhao, CEO of 2Firsts, on LinkedIn


Notice

1.  This article is intended solely for professional research purposes related to industry, technology, and policy. Any references to brands or products are made purely for objective description and do not constitute any form of endorsement, recommendation, or promotion by 2Firsts.

2.  The use of nicotine-containing products — including, but not limited to, cigarettes, e-cigarettes, nicotine pouchand heated tobacco products — carries significant health risks. Users are responsible for complying with all applicable laws and regulations in their respective jurisdictions.

3.  This article is not intended to serve as the basis for any investment decisions or financial advice. 2Firsts assumes no direct or indirect liability for any inaccuracies or errors in the content.

4.  Access to this article is strictly prohibited for individuals below the legal age in their jurisdiction.

 

Copyright

 

This article is either an original work created by 2Firsts or a reproduction from third-party sources with proper attribution. All copyrights and usage rights belong to 2Firsts or the original content provider. Unauthorized reproduction, distribution, or any other form of unauthorized use by any individual or organization is strictly prohibited. Violators will be held legally accountable.

For copyright-related inquiries, please contact: info@2firsts.com

 

AI Assistance Disclaimer

 

This article may have been enhanced using AI tools to improve translation and editorial efficiency. However, due to technical limitations, inaccuracies may occur. Readers are encouraged to refer to the cited sources for the most accurate information.

We welcome any corrections or feedback. Please contact us at: info@2firsts.com

JUUL Purchasers Ask Ninth Circuit to Preserve Antitrust Classes in Case Over Altria’s $12.8 Billion Investment
JUUL Purchasers Ask Ninth Circuit to Preserve Antitrust Classes in Case Over Altria’s $12.8 Billion Investment
Private antitrust litigation stemming from Altria's 2018 $12.8 billion investment for a 35% economic interest in JUUL is advancing before the U.S. Court of Appeals for the Ninth Circuit. Direct purchasers, indirect purchasers and indirect resellers of JUUL products filed answering briefs this week seeking to preserve class certifications granted by a California federal court in February. Altria and JUUL argue that individual consumers and large distributors differ too much in purchasing terms to remain in a single direct-purchaser class, while a separate dispute concerns whether California antitrust law can apply to indirect purchasers across 27 jurisdictions. A September trial has been put on hold during the appeal.
Sep.23
Special Report|Virginia Vape Directory Shows Contrast Between Vuse and JUUL Pod Systems and CrossBar 20K, Loon Flavored Disposables
Special Report|Virginia Vape Directory Shows Contrast Between Vuse and JUUL Pod Systems and CrossBar 20K, Loon Flavored Disposables
A 2Firsts analysis of Virginia's liquid nicotine and vapor product certification directory identified 213 product records from 15 manufacturers. Companies associated with BAT, Altria, Imperial Brands, JTI and JUUL account for 127 entries. The directory also includes independent brands CrossBar 20K, Loon and Breeze. CrossBar advertises a 13mL disposable capable of up to 20,000 puffs, while Loon has 16 disposable entries featuring fruit, cooling and beverage-related flavors. Of all records, 120 are labeled as under FDA PMTA review. Virginia introduced revised penalties on October 1, 2026, including a minimum first-violation civil penalty of $5,000 per unlisted product, alongside new retail tobacco permitting requirements.
Regulations
Oct.30
FDA Appoints Former Tobacco Enforcement Deputy Jessica Zeller as Director as Agency Weighs PMTA Framework Changes
FDA Appoints Former Tobacco Enforcement Deputy Jessica Zeller as Director as Agency Weighs PMTA Framework Changes
The U.S. Food and Drug Administration (FDA) has named Jessica Zeller director of the Center for Tobacco Products' (CTP) Office of Compliance and Enforcement (OCE), effective November 1, 2026. Zeller, the office's inaugural deputy director, returns from medical device manufacturer Edwards Lifesciences with more than 20 years of regulatory and legal experience. The appointment follows CTP leadership changes and adjustments to tobacco regulation. Bret Koplow became permanent CTP director in September; the FDA revised enforcement priorities for unauthorized e-cigarettes and nicotine pouches in May and announced faster PMTA review procedures. On September 28, the agency said it would evaluate changes to the existing PMTA regulatory framework, including potential rulemaking to replace it.
FDA
Oct.20 by 2Firsts Perspectives
Ireland Raises Nicotine Product Taxes Again as Cigarettes Gain €1 and Vape Duty Is Set to Jump 40%
Ireland Raises Nicotine Product Taxes Again as Cigarettes Gain €1 and Vape Duty Is Set to Jump 40%
Ireland has increased tobacco excise under Budget 2027 and announced a further rise in its E-liquid Products Tax. From Oct. 7, the tax burden on a pack of 20 cigarettes in the most popular price category increased by €1, with pro-rata increases on other tobacco products. The government plans to raise EPT from €0.50 to €0.70 per millilitre from Jan. 1, 2027, a 40% increase applying to both nicotine-containing and nicotine-free e-liquids. The tobacco duty increase is expected to raise about €63.1 million in a full year.
Regulations
Oct.09
PMI Expands Its Second Global and First Asian Business Services Hub in the Philippines, Serving 160 Markets and Scaling Up AI Capabilities
PMI Expands Its Second Global and First Asian Business Services Hub in the Philippines, Serving 160 Markets and Scaling Up AI Capabilities
Philip Morris International's PMI Business Solutions Philippines has expanded its global business services hub in Makati and plans to add more than 80 positions. Established in 2021 primarily to provide finance and IT support to about 20 markets, the center now employs 519 professionals delivering roughly 600 services across 160 markets. Its functions now span finance, human resources, IT, commercial operations, data analytics, supply chain and project management. PMI says the hub's next phase will focus on AI-enabled and higher-value work. The company did not disclose the size or investment cost of the expansion.
Sep.24
South Korea Constitutional Court Upholds Volume-Based E-Liquid Tax, With Challenged Rates at KRW 370 and KRW 628 per Milliliter
South Korea Constitutional Court Upholds Volume-Based E-Liquid Tax, With Challenged Rates at KRW 370 and KRW 628 per Milliliter
South Korea's Constitutional Court has upheld fixed taxes on nicotine-containing e-cigarette liquids based on solution volume, ruling that challenged provisions imposing KRW 370 per milliliter in individual consumption tax and KRW 628 per milliliter in tobacco consumption tax do not violate the Constitution. The cases stemmed from historical disputes involving importers that reported nicotine as being extracted from tobacco stems rather than leaves. South Korea has since broadened its tobacco definition to include synthetic nicotine, while current tax laws provide reduced rates for certain products not derived from tobacco.
Sep.18