FDA Tobacco Authority Deemed Constitutional

    Photo: Tierney

    A lawsuit challenging the constitutionality of the U.S. Food and Drug Administration’s (FDA) authority over vapor products has failed following the Supreme Court’s refusal to review a lower court’s ruling on the issue.

    The suit was filed on Aug. 19, 2019, by Big Time Vapes and United States Vaping Association in the U.S. District Court for the Southern District of Mississippi.

    The suit challenged the Tobacco Control Act, claiming that Congress unconstitutionally ceded its legislative authority to the FDA when it gave the agency the power to “deem” products as tobacco products that were not specified in the 2009 legislation.

    The complaint was dismissed in December 2019 and failed on appeal in the Fifth Circuit Court of Appeals last year. On June 25, 2020, the Court of Appeals found that Congress’ delegation of authority to the Secretary of Health and Human Services to deem additional products subject to the Tobacco Control Act was constitutional, upholding the district court’s decision.

    The Supreme Court referred the case back to a lower court. Since the court did not accept the petition, the lower court’s decision stands.

    The petition is the first case involving e-cigarettes to be heard by the Supreme Court, which accepts only between 100–150 of the more than 7,000 cases that it is asked to review each year, according to its website.