Docket No. 3:18-cv-00237 (N.D. Tex.)
Appeal #1: Docket No. 1:18-cv-01615 (D.D.C.)
Appeal #2: Docket No. 1:18-cv-00203 (D.D.C.)

Synopsis

E-cigarette manufacturer and retailer challenged the deeming rule under the U.S. Constitution.

Why It Matters for Public Health

This case is yet another challenge to the FDA’s deeming rule that gave it regulatory authority over tobacco products, including e-cigarettes. It was consolidated with another case, Moose Jooce v. FDA, which is ongoing. The multi-district litigation illustrates the resistance of e-cigarette manufacturers and retailers to regulatory oversight over their products.

Background

On May 5, 2016, the FDA issued the final rule deeming all existing and future tobacco products to be subject to the agency’s jurisdiction, including e-cigarettes. Among the requirements applicable to e-cigarettes is a prohibition on making claims that a product is less harmful or presents a “modified risk.”

District Court Proceedings

On January 30, 2018, Rave Salon, Inc., an e-cigarette manufacturer and retailer, filed suit in the Northern District of Texas. The plaintiffs made the same First Amendment and Appointments Clause claims made in the Moose Jooce and Hoban cases, which had been filed by the same attorneys representing different parties. The industry plaintiffs requested that the court issue a preliminary injunction barring enforcement of the deeming rule while the litigation proceeded and asked the court to permanently strike down the rule.

The FDA filed its answer on April 27, 2018 along with a motion to transfer the litigation to the District of Columbia, where the Moose Jooce and Hoban cases were being heard. On June 4, 2018, the court granted the motion to transfer. On June 8, 2018, the plaintiffs filed a motion to stay the court’s order which the court denied on June 11, 2018. The case was transferred to the District of Columbia on July 6, 2018, and consolidated into Moose Jooce on March 1, 2019.

Litigation Status

case was consolidated with Moose Jooce v. FDA. Please see that case entry for updates.