Vaping Victory

In late June of this year, the United States Supreme Court ruled in favor of the vaping industry when the justices came out against the Food and Drug Administration’s (FDA’s) move to limit where companies can challenge product marketing denials. This is a big deal.

The 7-2 decision, authored by Justice Amy Coney Barrett, al lows R.J. Reynolds Vapor Company to move forward in the 5th U.S. Circuit Court of Appeals in its attempt to market its Vuse Alto flavored e-cigarette products by suing alongside retailers.

“Vape industry groups applauded the ruling,” the Washington Post reported. Ryan J. Watson, the attorney for R.J. Reynolds, said in a statement that the court “recognized that federal agency action can have downstream effects that can be devastating for parties that are not the most direct target of the agency’s action.” The ruling ensures that “the courthouse doors are not closed for those adversely affected parties,” he added.

‘Oddly’

The background of the case is instructive.

According to a statement from the Washington, DC-based nonprofit law firm New Civil Liberties Alliance (NCLA), FDA had “oddly” claimed that vaping retailers are not adversely affected by a ban on the sale of vaping products, asking the justices to restrict the right to challenge the ban only to parties to the agency proceedings.

“Under the TCA, manufacturers need FDA approval to sell certain e-cigarette or ‘vaping’ products,” the statement explained. “R.J. Reynolds Vapor Company applied for permission to sell its Vuse e-cigarettes. FDA denied the application that prevents all retailers from selling the Vuse e-cigarettes, which they were allowed to sell while the application was pending. So, several retailers filed a petition for review in the U.S. Court of Appeals for the Fifth Circuit, stating that FDA’s decision ‘adversely affected’ them by costing them lost sales.”

The FDA, however, moved to dismiss their petition, arguing that the only person who could be “adversely affected” under the TCA is the manufacturer who filed the denied application. The Fifth Circuit rejected FDA’s argument, ruling that the re tailers have standing to bring their petition for review of the or der. The Supreme Court affirmed the Fifth Circuit’s judgment.

“‘Adversely affected’ (and its variations like ‘adversely affected or aggrieved’) is a term of art with a ‘long history in federal administrative law,’” Justice Barrett wrote for the Court, citing NCLA’s amicus brief. “Most notably, the term appears in the (Administrative Procedure Act), which entitles anyone ‘adversely affected or aggrieved by agency action within the meaning of a relevant statute … to judicial review.’ We have interpreted ‘adversely affected’ broadly, as covering anyone even ‘arguably within the zone of interests to be protected or regulated by the statute… in question.’”

The ruling stops FDA from narrowing the scope of the TCA’s judicial review provision, and prevents such a limitation from being applied to other statutes that provide for judicial review of agency actions across the Administrative State, NCLA not ed. “As a result, those harmed by agency action will still be able to seek relief in federal court.”

NCLA thanked the Supreme Court for rejecting FDA’s argument. “Today’s ruling is a welcome affirmation that administrative agencies may not creatively interpret statutory terms for the purpose of denying access to the courts by those who have been harmed by agency action,” said Daniel Kelly, Senior Litigation Counsel for NCLA.

Mark Chenoweth, the organization’s president, added that it was “delighted that the Supreme Court preserved the ability for people to challenge federal regulations even if they were not a party to, for example, the denial of a petition application. A contrary decision here would have narrowed the scope of judicial review provisions in many other statutes governing challenges to agency conduct.”

Elsewhere

At the same time, legislatures around the country continued to pressure the vaping industry in a variety of ways. For example:

• In Delaware, bill HB215 increases taxes on vapor products from 5c to 25c per ml as of September 1, 2025.

• In Louisiana, state legislative bill HB412 was sent to the governor for final review. It requires that manufacturers of vapor and alternative nicotine products sold in the state must submit a certification to the commissioner of the alcohol and tobacco commission, according to NATO. “This certification must affirm that the product was on the market in the U.S. by specific dates and that a premarket tobacco product applica tion was submitted to the FDA by certain deadlines.”

• In New York, S5196A would restrict the storage and sale of flavored vapor products near retail and wholesale locations; introduces stricter penalties and record-keeping requirements for dealers; and establishes programs to reduce vapor product use among youth.

• In Oregon, SB1198 would prohibit the sale or distribution of inhalant delivery systems (vapor products) that are in pack aging that is inconsistent with rules adopted by the Oregon Health Authority, which prohibits packaging that is deemed attractive to minors, NATO reported.