Supreme Court Ruling on Where Tobacco Companies Can Sue FDA Is Disappointing, but Doesn’t Speak to Merits of Decisions Against Flavored E-Cigarettes
Statement of Yolonda C. Richardson, President and CEO, Campaign for Tobacco-Free Kids
WASHINGTON, D.C. – The U.S. Supreme Court today ruled that e-cigarette manufacturers can file lawsuits challenging FDA marketing denial orders for e-cigarettes outside of the appellate court circuits where they are based.
This is a disappointing decision that gives e-cigarette manufacturers an open invitation to forum-shop for friendly courts in their relentless quest to lure and addict kids with flavored, nicotine-loaded products.
However, it is important to note that this ruling does not concern the merits of the FDA’s decisions to deny marketing authorization for flavored e-cigarettes; it concerns only the proper judicial venue for challenging these decisions. In a separate case decided on April 2, the Supreme Court ruled unanimously that the FDA followed the law in denying marketing applications for flavored e-cigarette products. This earlier ruling should encourage the FDA to continue denying marketing applications for flavored e-cigarettes given the overwhelming evidence that flavored products appeal to kids and pose significant risks to their health.
The case decided today, FDA v. R.J. Reynolds Vapor Company, concerns a lawsuit that Reynolds filed in the U.S. Court of Appeals for the Fifth Circuit challenging marketing denials for the company’s berry- and menthol-flavored Vuse Alto e-cigarettes. Reynolds filed its lawsuit in the Fifth Circuit – which covers Louisiana, Mississippi, and Texas – despite being headquartered in North Carolina, which is in the Fourth Circuit. The Fifth Circuit has been an outlier in ruling against several FDA marketing denial orders, and it was overturned by the U.S. Supreme Court in its April ruling. In contrast, seven other appellate courts across the country have upheld the FDA’s marketing denial orders. Even if today’s ruling allows manufacturers to continue forum-shopping in the Fifth Circuit, the Supreme Court’s April ruling provides strong grounds for upholding the FDA’s marketing denial orders now and in the future.