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Tag: Fifth Circuit

  • Vape Reps Appeal Mississippi Law to 5th Circ.

    Vape Reps Appeal Mississippi Law to 5th Circ.

    A coalition of businesses that sell vape products containing synthetic nicotine appealed a U.S. federal court’s refusal to block a Mississippi law restricting the sale of those products. The groups are taking the case to the U.S. Court of Appeals for the Fifth Circuit after the U.S. District Court for the Southern District of Mississippi denied their request for a temporary injunction.

    The contested state law, House Bill 916, which took effect in July 2025, bans the sale of e-cigarette products containing synthetic nicotine in Mississippi. Enforcement, including penalties and product confiscations, began later in the year.

    The plaintiffs, including industry groups such as the Vapor Technology Association and several retailers, argue the law is preempted by federal authority under the U.S. Constitution’s Supremacy Clause, asserting that it effectively conditions sales on FDA marketing authorization—a domain they say belongs exclusively to the federal government.

    Mississippi’s Department of Revenue Commissioner Chris Graham is named as the defendant in the appeal.

  • Six Manufacturers Appeal MDOs

    Six Manufacturers Appeal MDOs

    Six small manufacturers—American Vapor Company, Breeze Smoke, Elite Brothers, Lead by Sales (doing business as White Cloud Cigarettes), Vapermate, and Vertigo Vapor (doing business as Baton Vapor)—have filed appeals against the U.S. Food and Drug Administration’s marketing denial orders (MDOs), according to Vaping360.

    The companies all received MDOs between May 2024 and June 2025 and filed petitions for review in the Fifth Circuit within 30 days.

    While American Vapor Company is the only petitioner located within the Fifth Circuit’s jurisdiction, the other manufacturer’s recruited retail co-petitioners located within the jurisdiction, as allowed by the Supreme Court earlier this year. The Fifth Circuit has consolidated the cases as they are challenging on the same grounds and share the same attorneys.

    Azim Chowdhury and Eric Gotting of Keller and Heckman are representing the companies.

  • U.S. Supreme Court Backs RJR, Broader Legal Challenges to FDA

    U.S. Supreme Court Backs RJR, Broader Legal Challenges to FDA

    The U.S. Supreme Court ruled 7–2 in favor of R.J. Reynolds Vapor Company, allowing it to challenge FDA denials of e-cigarette marketing applications in the Fifth Circuit, even though the company is based in North Carolina.

    The decision effectively expands who can file lawsuits under the 2009 Family Smoking Prevention and Tobacco Control Act, now including retailers and trade groups affected by product bans, not just manufacturers. This enables tobacco companies to approach conservative-leaning courts like the Fifth Circuit, which has frequently ruled against FDA vaping restrictions.

    The FDA argued that retailers were never meant to be included under the legislation, and that 75% of e-cigarette appeals were being filed in the Fifth Circuit through strategic partnerships with local vape shops and trade groups, undermining consistent enforcement.

    Justice Amy Coney Barrett, writing for the majority, said that retailers are “adversely affected” because they lose potential sales or risk penalties by selling unapproved products. Justice Ketanji Brown Jackson, in dissent, warned the ruling contradicts Congress’s intent, allowing companies to bypass venue restrictions meant to streamline regulation.

    The case specifically involved menthol-flavored Vuse vapes, which the FDA had denied for failing to meet public health standards. The ruling now returns the case to the Fifth Circuit for further review.