Vapor Technology Association et al. v. U.S. Food and Drug Administration

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No. 5:19-cv-00330 (E.D. Ky.)

On August 14, 2019, Vapor Technology Association, and Vapor Stockroom, LLC, an e-cigarette trade group and an e-cigarette manufacturer, filed suit in the Eastern District of Kentucky. The plaintiffs requested that that the court issue a preliminary and permanent injunction as well as declaratory judgment that the FDA’s May 12, 2020 deadline to file marketing applications violates the Administrative Procedure Act. On September 2, 2019, the plaintiffs filed a motion for a preliminary injunction. On October 11, 2019, the FDA filed a response to the motion for a preliminary injunction. The plaintiffs filed their reply in support of the motion on November 8, 2019. Oral arguments have not been scheduled.

On October 11, 2019, the FDA filed a motion to dismiss. The plaintiffs’ filed their response to the motion on November 8, 2019. The FDA’s reply is due November 25, 2019. Oral arguments have not been scheduled.

On October 11, 2019, the FDA filed a motion to transfer the case to the District of Maryland. The plaintiffs’ response to the motion to transfer was filed on November 11, 2019. The FDA’s reply is due November 25, 2019. Oral arguments have not been scheduled.

The lawsuit alleges that:

  1. the FDA failed to use the notice and comment process to establish new premarket review compliance deadlines, a violation of the APA;
  2. the FDA’s action amounts to a deprivation of property without due process of law, a violation of the Fifth Amendment.