Current Status of Deeming Litigation

The FDA’s deeming regulation is being challenged in multiple courts around the country. This is the current status of each case.

Case, Court, and Docket

Plaintiff(s)

Status

Involvement of Public Health Groups

Next Important Date

NicoPure v. FDA

Court of Appeals for the D.C. Circuit

(17-05196)

E-cigarette manufacturers and trade groups

FDA rule upheld by district court, appeal pending

Amicus Curiaebrief filed in district court and court of appeals

9/11/18: Oral Arguments

Lost Art Liquids v. FDA

U.S. District Court for the Central District of CA

(2:16-cv-03468)

Manufacturer of e-cigarette devices and liquid nicotine

Open

None so far

Unknown: the plaintiffs have filed an objection to the court’s order allowing the government to produce the administrative record under a protective order

Cigar Association of America v. FDA

Court of Appeals for the D.C. Circuit

(18-05195)

Trade associations for retailers and manufacturers of cigars and pipe tobacco

FDA rule partially upheld and partially struck down, appeal pending

Motion to intervene denied; Amicus Curiae brief filed in district court

7/30/18: Procedural motions are due.

Sanchez Icaza v. FDA

U.S. District Court for the Southern District of FL

(1:16-cv-21967)

Cigar manufacturer and its proprietor

Administratively closed

None so far

Unknown: the court granted a joint motion to stay the proceedings indefinitely as a result of the FDA’s new regulatory plan (the parties may move to reopen the case)

Cyclops Vapor 2 v. FDA

U.S. District Court for the Middle District of AL

(2:16-cv-00556)

Manufacturers and distributors of e-cigarette devices and liquid nicotine

Stayed pending the outcome of NicoPure v. FDA

Motion to intervene granted

Unknown: This case has been stayed until NicoPure v. FDA has been decided

Faircloth v. FDA

U.S. District Court for the Southern District of WV

(2:16-cv-05267)

User of e-cigarette devices and liquid nicotine and member of the WV legislature

Open

None so far

Unknown: The government’s motion to dismiss for lack of standing was granted on all counts but one. The government has answered the plaintiff’s complaint and because there are no facts in dispute, one of the parties will likely file a motion for summary judgment.

En Fuego Tobacco v. FDA

U.S. District Court for the Eastern District of TX

(4:18-cv-00028)

Cigar retailer, manufacturer, and trade association

Appeal of motion to transfer pending

None so far

Unknown: the court has not yet ruled on the plaintiffs’ appeal of the court’s order to transfer the case to U.S. District Court for the District of Columbia. 

Jooce v. FDA

U.S. District Court for D.C.

(1:18-cv-00203)

E-cigarette manufacturers and retailers

Open

None so far

Unknown: proceedings are stayed pending the transfer of Hoban.

Rave Salon v. FDA

U.S. District Court for the District of Columbia

(1:18-cv-01615)

E-cigarette manufacturer and retailer

Open

None so far

Unknown: the case was transferred to U.S. District Court for the District of Columbia and may be consolidated with Jooceand Hoban.

Hoban v. FDA

U.S. District Court for the District of MN

(0:18-cv-00269)

E-cigarette manufacturers and retailers

Transfer order stayed pending an appeal by plaintiffs

None so far

7/26/18: plaintiffs must appeal court’s order to transfer or the court’s stay will lapse

For a more expanded description of how this litigation has proceeded so far, check out Lawsuits Challenging the FDA’s Deeming Rule.

Last Updated: 07/25/2018

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