FOLLOW US

The U.S. Food and Drug Administration pressed the Supreme Court on Friday to transfer a suit from R.J. Reynolds Vapor Co. and its retail partners over vape product marketing denials from the Fifth Circuit to the D.C. Circuit. The FDA argued federal law doesn’t permit manufacturers to manipulate venues by involving retailers without standing. In its reply brief, the FDA claimed Texas- and Mississippi-based retailers lack the legal grounds to challenge the denial of R.J. Reynolds' application, asserting the Family Smoking Prevention and Tobacco Control Act reserves this right for the applicant. "A denial is issued to the applicant alone, not to retailers," the FDA stated, emphasizing that retailers face no new legal prohibitions due to the denial. The dispute began with the FDA’s rejection of R.J. Reynolds’ marketing applications for menthol-flavored vape products in 2023. The Fifth Circuit had blocked the FDA’s order earlier, enabling the products to remain on the market. However, the FDA maintains that venue restrictions in the Tobacco Control Act limit challenges to either the D.C. Circuit or the manufacturer’s home circuit. The FDA criticized R.J. Reynolds’ approach as forum shopping, asserting the Fifth Circuit’s venue decision undermines the act’s intent and the D.C. Circuit’s nationwide authority in tobacco cases. The agency further noted that allowing such venue tactics gives large manufacturers an unfair advantage over smaller firms. Representatives for R.J. Reynolds and the retailers were unavailable for comment. The case is Food and Drug Administration et al. v. R.J. Reynolds Vapor Co. et al., case number 23-1187, in the U.S. Supreme Court.