Rave Salon Inc., et al. v. U.S. Food and Drug Administration

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No. 3:18-cv-00237 (N.D. Tex.)
No. 1:18-cv-01615 (D.D.C.)
No. 1:18-cv-00203 (D.D.C.)

On January 30, 2018, Rave Salon, Inc., an e-cigarette manufacturer and retailer, filed suit in the Northern District of Texas. 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 27, 2018 along with a motion to transfer the litigation to the District of Columbia where an identical case had been filed by the same attorneys representing different parties. The plaintiffs filed their response to the motion on May 18, 2018 and the FDA filed its reply on June 1, 2018. 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 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.