Supreme Court allows vape companies to pick courts to hear challenges
The Supreme Court on Friday rejected a government effort to narrow options for challenging Food and Drug Administration denials of applications to market electronic cigarettes, including flavored products that health officials say have led to a youth vaping epidemic.
In a case that centered on questions of venue-shopping, the justices ruled 7-2 that tobacco giant R.J. Reynolds was allowed to ask a conservative appeals court far from its North Carolina home to examine an FDA rejection of its bid to market menthol cigarettes. Anti-smoking groups said the ruling deals a blow to efforts to keep young people from vaping.
“Congress knows how to limit the scope of a cause of action—in fact, it did so elsewhere in the [Tobacco Control Act],” Justice Amy Coney Barrett wrote for the majority, referring to the law in question in the case.
Liberal Justices Ketanji Brown Jackson and Sonia Sotomayor dissented from the opinion, which sent the case back to a lower court for more proceedings. Jackson wrote that the majority’s opinion allows Reynolds to make an “end run around … venue restrictions.”
The FDA had told the justices that R.J. Reynolds and other electronic cigarette manufacturers were gaming court system rules by filing the vast majority of product-denial appeals in the U.S. Court of Appeals for the 5th Circuit, based in New Orleans, even though they were based in other appeals court circuits.
The tactic was hindering the FDA’s ability to regulate vapes that are used by hundreds of thousands of teenagers, the agency said. In the case before the justices, the 5th Circuit—widely seen as more sympathetic to the companies’ arguments than other circuits—overturned the FDA’s denial of an R.J. Reynolds application.
The electronic cigarette ruling was one of six decisions issued Friday, with at least a week left in the Supreme Court’s term. Ten decisions remain, including cases involving the legality of age-verification laws to access online pornography and nationwide court orders blocking President Donald Trump’s ban on birthright citizenship.
In addition to the vape decision, the Supreme Court on Friday revived lawsuits brought by U.S. victims of terrorist attacks in Israel against the Palestine Liberation Organization. The opinion written by Chief Justice John G. Roberts Jr. upheld a 2019 federal law passed in response to attacks that allows Americans to sue. The court said that law does not violate the rights of the PLO.
In a 7-2 decision, the justices also cleared the way for fuel producers to sue the Environmental Protection Agency over California’s stricter standards for vehicle emissions. California’s efforts are already in flux after being targeted by Trump and Republicans in Congress.
Under the 2009 Family Smoking Prevention and Tobacco Control Act, manufacturers must get FDA approval to sell some existing products, as well as new products, that are marketed in more than one state. The Vuse line of menthol vapes are the ones in question in the R.J. Reynolds case.
Ryan J. Watson, who is representing R.J. Reynolds, told the justices at oral arguments that the company was permitted to file a challenge in the 5th Circuit because the act allows “any person adversely affected” by a denial to file a challenge in the District of Columbia Circuit or the “circuit in which such person resides or has their principal place of business.”
R.J. Reynolds partnered with a Texas vape store and the Mississippi Petroleum Marketers and Convenience Stores Association to bring the challenge to the FDA ruling. The 5th Circuit covers Texas and Mississippi, while R.J. Reynolds is in the 4th Circuit.
Vivek Suri, an assistant to the solicitor general, arguing on behalf of the government, said Congress never meant for retailers or their representatives, rather than manufacturers, to be parties to such litigation when it passed the act. He pointed out that retailers aren’t notified when the FDA rejects manufacturers’ applications to market vaping products and said the tactic defeats the venue restrictions laid out in the law.
But the Supreme Court said Friday it has long established a broad interpretation of what it means to be adversely affected by a law, including in the category anyone even “arguably within the zone of interests” that the statute regulates.
Vape industry groups applauded the ruling. Watson, the attorney for R.J. Reynolds, said in a statement that the court “recognized that federal agency action can have downstream effects that can be devastating for parties that are not the most direct target of the agency’s action.” The ruling ensures that “the courthouse doors are not closed for those adversely affected parties,” he said.
Yolonda C. Richardson, president and CEO of the Campaign for Tobacco-Free Kids, said the decision will bolster efforts to market addictive products to young people.
The ruling “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,” she said.
Federal judiciary leaders and some members of Congress have tried to take steps to limit judge shopping—the practice of filing a lawsuit in a courthouse or circuit where a business or individual believes its judges will be inclined to rule in their favor. The tactic has drawn scrutiny in abortion, immigration and environmental cases, among others.
In her dissent to Friday’s ruling, Jackson noted that two other appeals courts had rejected similar challenges filed by other manufacturers of flavored electronic cigarettes before R.J. Reynolds filed its appeal to the 5th Circuit.
“It thus became (perhaps) imperative from RJR Vapor’s perspective that its own lawsuit challenging the FDA’s denial of its flavored e-cigarette marketing applications be filed somewhere else,” Jackson wrote. She said the company had done an “end run around” restrictions on venue in the statute by teaming up with a Texas-based retailer to file their claim in the 5th Circuit.
In a separate case decided in April, the high court ruled unanimously that the FDA properly rejected applications to market fruit- and dessert-flavored liquids for electronic cigarettes that the agency says are popular with young people and risk getting them hooked on nicotine. The products had names such as “Jimmy the Juice Man Peachy Strawberry,” “Suicide Bunny Mother’s Milk and Cookies,” “Iced Lemonade” and “Killer Kustard Blueberry.”
An electronic cigarette or vape is a battery-powered device that heats a nicotine-infused liquid, turning it into a vapor that is inhaled. Electronic cigarettes are generally considered less harmful than traditional cigarettes but still carry health risks.
The FDA has moved aggressively to regulate flavored vapes in recent years because of their popularity with young people.
A 2024 Centers for Disease Control and Prevention survey found that electronic cigarettes were the most common tobacco product used by middle-schoolers and high-schoolers. About 1.6 million students use electronic cigarettes, according to the survey, which amounts to about 6 percent of the middle and high school population. Nearly 90 percent of those who vape prefer the flavored liquids, according to the survey. Overall, youth vaping has declined significantly after reaching a peak in 2019.
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