Docket No. 1:18-cv-00203 (D.D.C.)
Appeal: Docket No. 20-05048 (D.C. Cir. Mar 10, 2020)
E-cigarette manufacturers and retailers 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, Moose Jooce, Mountain Vapors, Rustic Vapors, and Dutchman Vapors, e-cigarette manufacturers and retailers, filed suit against the FDA in the District Court of the District of Columbia.
The lawsuit alleged that:
- 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;
- the prohibition on making unauthorized modified risk claims unconstitutionally restricts speech, a violation of the First Amendment.
The 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 23, 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 the Rave Salon Inc., Hoban, and Moose Jooce cases. On May 2, 2019, the plaintiffs filed a motion for partial summary judgment. On June 6, 2019, the FDA filed its opposition to the plaintiffs’ motion along with a cross-motion for partial summary judgment. Oral arguments were held on October 22, 2019. On December 17, 2019, the parties filed a status report notifying the court of the D.C. Circuit’s decision in Nicopure, which impacted the First Amendment claim in this case. On February 11, 2020, the court issued an order denying the plaintiffs’ motion for partial summary judgment and granting the FDA’s motion for partial summary judgment on the plaintiffs’ Appointments Clause claim. Because the D.C. Circuit’s decision in Nicopure governed the First Amendment claim, the court also granted summary judgment in favor of the government on that claim.
Proceedings in the Court of Appeals for the D.C. Circuit
On March 10, 2020 Moose Jooce filed a notice of appeal with the D.C. Circuit Court of Appeals, and on March 11, filed an emergency motion to expedite the case. The court denied that motion and briefing occurred in the Spring of 2020. Oral arguments were held on September 23, 2020.
The case is currently on appeal in the Court of Appeals for the D.C. Circuit.