A US civil rights group has filed an opinion with the Supreme Court to support retailers challenging the FDA’s ban on vape sales and opposing the agency’s attempt to limit judicial review.
A U.S. Civil Rights Organization Supports Retailers’ Right to Sue
According to a December 23 Globe Newswire report, the New Civil Liberties Alliance (NCLA) filed a friend of the Court opinion with the U.S. Supreme Court in support of the defendants. And in a case called Food and Drug Administration (FDA) v. R.J. Reynolds Vapor Company, NCLA urged the Supreme Court to reject the FDA’s attempt to evade responsibility.
Supreme Court urged to reject FDA blame-shifting
Although the law allows “any person adversely affected by an FDA order” to challenge the agency’s decision in court. The FDA claims that the ban on vape sales has no adverse effect on such retailers. FDA is asking the Supreme Court to limit the right to challenge the parties involved in the administrative process. The coalition explained that the restriction would run afoul of relevant law and Supreme Court precedent.
Under the Family Smoking Control Act (TCA), manufacturers are required to obtain FDA approval before selling some vape brands. Reynolds applied to sell its Vuse vape, but the FDA denied the application, meaning that all retailers are banned from selling Vuse vapes. However, such products can be sold while the application is being processed. As a result, a group of retailers filed a petition for approval with the U.S. Court of Appeals for the Fifth Circuit, arguing that the FDA’s decision had an “adverse effect” on them by costing them sales.
However, the FDA denied their request, arguing that the only person who could be considered an “adverse influence” under the Family Smoking Control Act (TCA) was a manufacturer who submitted an application and was denied. The U.S. Court of Appeals for the Fifth Circuit rejected the FDA’s arguments, ruling that retailers were eligible to petition for approval of the directive. To alleviate the problem, of deciding whether the venue court was appropriate, the Supreme Court agreed to hear the case.
Such a scenario could have wide-ranging implications. For example, FDA has successfully narrowed the scope of the judicial review provisions of the Family Smoking Prevention and Control Act (TCA) and the same restrictions may be applied to many other laws and regulations throughout the administrative state, providing judicial review of agency actions. As a result, many individuals and businesses affected by agency actions will be prevented from seeking help in federal court.
According to NCLA CEO Mark Chenoweth,
- “The regulation of vapes is not a concern of NCLA. But the case hinges on whether a retailer can Sue over an order banning the sale of a product. The FDA, or only manufacturers, can object to such a directive. Because Congress created judicial review statutes that include retailers, they should be able to Sue the FDA directly.”
NCLA is a 501 nonprofit public interest lawyer firm led by Columbia Law School professor Philip Hamburg. (Philip Hamburger) was founded in 2017. The group aims to challenge what it considers an illegal use of executive power.
