U.S. Supreme Court Rejects Vaping Industry Challenge To FDA Vaping Regulations

SCOTUS rejected an industry challenge to the Food and Drug Administration’s (FDA) vaping regulations.

WASHINGTON — In a win for the public health regime in the United States, the high court ruled in favor of the Food and Drug Administration’s right to regulate electronic cigarettes and vaping products. The court declined to hear the challenge, ultimately turning away an opportunity for the courts to put restrictions on the power of federal regulatory agencies.

The United States Vaping Association (USVA) and a Mississippi vape shop appealed to the Supreme Court to invoke the “so-called non-delegation doctrine,” which serves as a sparingly constitutional rule that says the U.S. Congress must give “clear guidance to an agency before handing off its legislative responsibilities,” Rolling Stone reports.

“Today’s result is very disappointing, but it’s not the end,” said Jerad Najvar, an attorney representing the case from the Najvar Law Firm PLLC.

“The FDA will not run this life-saving industry aground and kill your small businesses without answering for more in court if necessary. I’ll be surveying members soon regarding your situation as we plot the next steps,” Najvar said via Facebook.

“I have been reviewing additional potential claims based on the FDA’s opaque and constantly changing standards, and there is potential litigation ahead to try to clear the path for small businesses.”

The Biden administration asked the Supreme Court to reject the appeal from the industry.

The administration cited Congress as having the clear authority to issue the FDA’s authority to regulate the tobacco industry in the interest of protecting public health, public safety, and others. This includes the FDA’s work to mitigate false or misleading advertising and nicotine dependence, especially among children and at-risk groups.

Elizabeth Prelogar, U.S. Solicitor General, argued in court papers that “in the definitions, findings, and statements of purpose that is included in the [Tobacco Control Act], Congress laid out intelligible principles with appropriate boundaries for FDA to apply.”

Prelogar added, “that is more than Congress was required to do to satisfy the non-delegation doctrine.”

Prelogar, as the Solicitor General, litigated the interests of the U.S. government before the Supreme Court and other federal appellate courts.

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