Moose Jooce, et al. v. U.S. Food and Drug Administration

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No. 1:18-cv-00203 (D.D.C.)

On January 30, 2018, Moose Jooce, Mountain Vapors, Rustic Vapors, and Dutchman Vapors, ecigarette manufacturers and retailers, filed suit in the District Court of the District of Columbia. The plaintiffs requested that the court issue a preliminary injunction barring enforcement of the rule while the litigation proceeds and asked the court to permanently strike down the rule. The FDA filed its answer on April 2, 2018 along with a notice informing the court that it was seeking to transfer Rave Salon and Hoban to the District of Columbia so that the three cases could be consolidated. On July 17, 2018, the court ordered that the proceedings in this case be stayed until the expiration of the transfer order in Hoban.

On March 1, 2019, the court consolidated Rave Salon Inc. and Hoban into Moose Jooce. On May 2, 2019, the plaintiffs filed a motion for summary judgment. On June 6, 2019, the FDA filed its opposition to the plaintiffs’ motion and a cross-motion for summary judgment. On July 2, the plaintiffs filed their reply and opposition to the FDA’s cross-motion. On August 1, 2019, the FDA filed its reply. Oral arguments were held on October 22, 2019.

The lawsuit alleges that:

  1. the FDA employee whose name appears in the Federal Register notice for the deeming regulation is not a principal officer or inferior officer, a violation of the Appointments Clause of the Constitution;
  2. the prohibition on making unauthorized modified risk claims unconstitutionally restricts speech, a violation of the First Amendment.