Regulation of E-cigs as Tobacco Upheld

A U.S. federal appeals court has upheld the Food and Drug Administration’s (FDA) decision to regulate e-cigarettes as tobacco products, reports Westlaw Today.

Several vape shops and e-liquid manufacturers, represented by the Pacific Legal Foundation, a conservative legal group, had challenged the FDA’s decision claiming it violated the Constitution (Moose Jooce et al v. FDA).

They argued that the FDA’s then-associate commissioner for policy, Leslie Kux, who issued the 2016 rule deeming e-cigarettes to be tobacco products, lacked the authority to do so because she was a career employee, not a principal officer appointed by the president.

The FDA countered that the authority had been delegated to Kux by the agency’s commissioner. Furthermore, it said, her authority did not matter because the rule was ultimately ratified by two different FDA commissioners, most recently FDA Commissioner Scott Gottlieb in April 2019.

A unanimous panel of the D.C. Circuit U.S. Court of Appeals ruled that the regulation did not run afoul of the Constitution’s Appointments Clause.

Jonathan Wood of the Pacific Legal Foundation said he and his clients were disappointed by the ruling and considering next steps.