Is the US Supreme Court Set to Review a Vaping Appeal in the Near Future?

Two vape manufacturers have recently filed petitions for writs of certiorari with the Supreme Court, seeking a review of their unsuccessful appeals of FDA marketing denial orders (MDOs).

Magellan Technology, Inc. submitted its Supreme Court petition on January 22 (docket type 23-799), following the denial of its appeal by the Second Circuit Court of Appeals on June 16. Magellan's appeal contested MDOs issued in September 2021 for 12 non-tobacco-flavored refill pods for its Juno pod vape.

Similarly, Lotus Vaping Technologies, LLC filed a petition with the high court on February 9 (docket type 23-871). Lotus had received MDOs in September 2021 for over 200 bottled e-liquids, spanning various brands, non-tobacco flavors, and nicotine strengths. The company's appeal, which was consolidated with Nude Nicotine, Inc., was turned down by the Ninth Circuit Court on July 7, 2023.

Both Magellan and Lotus, based in western New York State and Idaho respectively, are represented by attorney Eric Heyer from the Thompson Hine law firm in Washington, D.C. Heyer has a track record of handling appeals for clients in the vaping industry.

Numerous vaping manufacturers and distributors have contested FDA denials in federal courts, with many cases still awaiting resolution.

The growing split among circuit courts regarding FDA denials may increase the likelihood of Supreme Court review. While five circuits have upheld FDA denials, recent decisions in the Fifth and Eleventh Circuits, along with a partial victory in the District of Columbia Circuit, suggest a potential division in judicial opinion. This development could prompt the Supreme Court to consider the appeals filed by Magellan and Lotus.

Previous vaping-related appeals have thus far been denied by the Supreme Court. Despite this, observers believe the increasing disparity among circuit courts may prompt the Supreme Court to intervene. The possibility of FDA seeking Supreme Court review of its loss in the Fifth Circuit has also been raised by legal scholars and industry insiders.

Notable previous petitions rejected by the Supreme Court include challenges to flavor bans in California by R.J. Reynolds, AVAIL Vapor's appeal of an MDO denial, and appeals by various small vape businesses challenging the FDA Deeming Rule and the Tobacco Control Act.

The outcomes of the petitions filed by Magellan and Lotus will be closely watched by stakeholders within the vaping industry and legal community alike, as they may have far-reaching implications for FDA regulations and the future of vaping in the United States.