No. 2:16-cv-5267 (S.D. W.V. 2016)
On June 10, 2016, Larry W. Faircloth, a user of e-cigarette devices and liquid nicotine, filed suit in the District Court of the Southern District of West Virginia. Faircloth has requested that the court issue a preliminary injunction barring enforcement of the rule while the litigation proceeded and asked the court to permanently strike down the rule.
The lawsuit alleged that:
- the FDA’s interpretation of the term, “tobacco product” is “not in accordance with the law” and “in excess of statutory jurisdiction,” a violation of the APA;
- the enforcement of premarket review against e-cigarettes would drive up the costs for devices and liquids for consumers and push consumers toward combustible cigarettes, rendering the FDA’s action “arbitrary and capricious,” a violation of the APA;
- the FDA’s cost-benefit analysis for the rule overstates the benefits and understates the costs of requiring premarket review of e-cigarettes, an action that is “without observance of procedure required by law,” a violation of the APA;
- the rule would prevent consumers from receiving truthful and non-misleading statements and other forms of protected expression, such as free samples of products, an action that is “contrary to [the] constitutional right,” of free speech protected by the First Amendment, in violation of the APA; and
- by removing many e-cigarettes from the market, the FDA effectively prevented the state of West Virginia from reducing its Medicaid budget by “compelling the state to expend money…on tobacco related healthcare costs,” in violation of the Tenth Amendment’s protection of the state’s rights
In lieu of answering the complaint, the FDA filed a motion to dismiss the case on October 28, 2016 arguing that Mr. Faircloth lacked standing to challenge the Deeming Rule as a consumer of vaping devices. Faircloth filed a response to this motion on November 30, 2016, and the FDA filed a reply to plaintiff’s response on December 12, 2016.
On September 28, 2017, the court granted the motion to dismiss all claims except for the claim that the deeming rule violated the First Amendment. After setting a new briefing schedule for proceedings on that claim, on June 14, 2019, the parties agreed that the plaintiff would dismiss the case with prejudice.