A Mississippi vape shop has petitioned the U.S. Supreme Court to review its lawsuit against the FDA, which failed in two lower federal courts. The odds are stacked against the court granting the petition, but the attorneys for the small business are hoping the unique legal basis of their challenge will catch the eye of conservative Supreme Court justices.
Filed in 2019, the lawsuit by Mississippi vape shop and e-liquid manufacturer Big Time Vapes and trade organization the United States Vaping Association (USVA) challenges the Tobacco Control Act itself, charging that Congress unconstitutionally ceded its legislative authority to the FDA when it gave the agency the power to “deem” products (like vapes) that were not specified in the 2009 legislation.
The challenge is based on the doctrine of nondelegation, which states that Congress cannot give away its own legislative authority to executive agencies (like the FDA). The doctrine, which is part of the principle of separation of powers in the Constitution, has been applied before by the high court, but not since the 1930s. However, a recent Supreme Court decision, Gundy v United States, indicated that the court may now be willing to take a fresh look at nondelegation.
Conservatives, who want to limit the authority of unelected bureaucrats, believe that the current court—with the recent addition of Trump-appointed justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—may be shopping for a case that can be used to reassert the doctrine.
The original complaint was dismissed by the U.S. District Court for the Southern District of Mississippi in December 2019, and failed on appeal in the Fifth Circuit Court of Appeals last year. (The original complaint and appeal decisions can be seen here.)
Big Time Vapes and the USVA are represented in their petition to the Supreme Court by Jerad Wayne Najvar and Austin M.B. Whatley of the Houston, Texas-based Najvar Law Firm—the same firm that filed the original lawsuit and the appeal.
The petition marks the first time the vaping industry has attempted to appeal a case to the nation’s highest court. However, it remains a long shot that the case will be heard. To be accepted for review, four of the nine Supreme Court justices must agree to grant a writ of certiorari (Latin for “to be made certain”). The number of petitions accepted for review by the Supreme Court each year is small—only about 2-4 percent of those submitted. If the court does not accept the petition, the lower court’s decision will stand.
The Big Time Vapes petition was filed Dec. 18, 2020. It could be several weeks before the petitioners know if the Supreme Court will grant certiorari and accept the case. If the writ is granted, the vaping industry petitioners’ lawyers and the Department of Justice lawyers representing the FDA will each have time to file briefs and responses, followed by oral arguments to the court. A final decision, if the court accepts the case, could be a year or more away.