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.)
E-cigarette manufacturer and retailer challenged the deeming rule under the U.S. Constitution.
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.
The Court of Appeals for the D.C. Circuit upheld the district court’s ruling and the case is now closed.