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 US 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 Trump’s ban on birthright citizenship.
In addition to the vape decision, the Supreme Court on Friday revived lawsuits brought by US 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 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.
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.
